IF THERE WAS A SEARCH & SEIZURE WITHOUT A WARRANT, HAS THE STATE PROVEN THAT IT WAS REASONABLE?  
(Continued- Pages 179-256)
C.     Was the search incidental to a lawful arrest? Kyser v. State, 533 So. 2d 285 (Fla. 1988); London v. State, 540 So. 2d 211 (Fla. 2d DCA 1989); State v. Maya, 529 So. 2d 1282 (Fla. 3d DCA 1988); Stone v. State, 547 So. 2d 657 (Fla. 4th DCA 1989)(en banc); State v. Howard, 536 So. 2d 1979 (Fla. 5th DCA 1989); Williams v. State, 531 So. 2d 246 (Fla. 5th DCA 1988). [Back]

1.  Definition of an arrest.  [Back]

a.  Kyser v. State, 533 So. 2d 285 (1993), holds that for there to be an arrest there must be four elements: (1) intent to make an arrest "under real or pretended authority;" (2) "an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested;" (3) communication of the intent to arrest; (4) understanding by the suspect that the officer intends to arrest and detain him or her. Brown v. State, 623 So. 2d 800 (Fla. 4th DCA 1993). See also Melton v. State, 75 So. 2d 291 (Fla. 1954); Elliot v. State, 704 So. 2d 606 (Fla. 4th DCA 1997).

b.  For a discussion of constructive seizure see Elliot v. State, 704 So. 2d 606 (Fla. 4th DCA 1997).

2.  The Court noted that in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Court recognized two rationales for allowing a search incident to arrest: "(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial." Knowles v Iowa, 119 S.Ct. 484 (1998).

3.  There must be probable cause or a valid warrant.   [Back]

a.  The arrest only need be supported by probable cause not necessarily a prima facie case. Davis v. State, 602 So. 2d 606 (Fla. 2d DCA 1992).

b.  Probable cause may be based on any of officer's senses including the sense of touch. Rodriguez v. State, 557 So. 2d 68 (Fla. 3d DCA 1990).

c.  A void or nonexistent warrant may not be the basis for a legal arrest and search even though the officer is unaware of the flaw. State v. Gifford, 558 So. 2d 444 (Fla. 4th DCA 1990).

d.  The observation of opaque containers, such as hand-rolled cigarettes, without something more, is insufficient to establish probable cause. The additional element was present where officers had sufficient experience to recognize the object as one commonly used to hold cocaine at a site where narcotics were frequently transported. Cross v. State, 560 So. 2d 228 (Fla. 1990). See also Johnson v. State, 565 So. 2d 413 (Fla. 3d DCA 1990).

e.  A trained narcotics detection dog's positive indication for drugs provides probable cause for a vehicle search. State v. Russell, 557 So. 2d 666 (Fla. 2d DCA 1990); State v. Taswell, 560 So. 2d 257 (Fla. 3d DCA 1990).

f.  Dog’s alert on driver’s seat gave the officer probable cause to search the vehicle, but not the driver’s person. Bryant v. State, 779 So. 2d 464 (Fla. 2d DCA 2000).

g.  For factors to consider in determining whether there was probable cause to believe the defendant was in possession of drug paraphernalia see Baggett v. State, 562 So. 2d 359 (Fla. 2d DCA 1990).

h.  An arrest was valid where there was probable cause to believe that the defendant was in possession of cocaine even though it turned out that it was not cocaine. McCoy v. State, 565 So. 2d 860 (Fla. 2d DCA 1990).

i.  The defendant was sitting on a curb alone. A deputy received a tip that a black male in his forties, wearing burgundy pants and a white shirt was selling drugs at a certain address. The defendant matched the description and was sitting on the curb alone at the location whittling with a knife. A cigarette pack was about one foot away from the defendant. As the deputy reached for the pack, the defendant reached toward it, but pulled back. The deputy found crack cocaine inside the pack. The officer arrested the defendant for possession. On appeal, the court ruled that the officer did not have probable cause because there was nothing to show that the defendant was ever in possession of the pack. Johnson v. State, 741 So. 2d 1223 (Fla. 2d DCA 1999).

j.  The defendant was one of several individuals in a vehicle that officers stopped. The defendant was asked to exit. An officer "noticed a brown paper bag which was near the front tire area of the passenger's side of the police car, about a foot from where McGowan was standing. The officer had not noticed the bag before McGowan was removed from the vehicle. The bag contained more baggies with orange stripes. Two of the baggies had white residue in them which tested positive for cocaine." One officer had walked past that area "moments before McGowan had been moved there and had seen nothing." The officers arrested the defendant on drug charges. The trial judges denied a motion to suppress. On appeal, the court reversed. The court said that the State would have to rely on constructive possession. "Mere proximity to contraband found in a public place and in the vicinity of several other people does not warrant a finding that the police officer had probable cause to believe that the person or persons closest to the contraband possessed it.... In this case, the only evidence connecting the brown paper bag to McGowan other than his proximity to the bag is the fact that it contained tiny baggies with orange stripes which were identical to the empty baggies McGowan carried in his jacket. However, it is possible that the other passengers in the vehicle could have obtained similar baggies. Accordingly, we conclude that the trial court erred in finding that the abandoned bag could be attached to McGowan. It follows that the police did not have probable cause to arrest McGowan for possession of cocaine." McGowan v. State, 778 So. 2d 354 (Fla. 2d DCA 2001).

k.  A deputy made a valid traffic stop. There were two people in the car. The driver consented to the deputy searching the vehicle. Upon entering the vehicle the officer detected a "‘hint’" of burnt marijuana. When he opened the ashtray, he detected residual marijuana. The driver said the marijuana was not his and consented to a patdown search. The officer then searched the passenger, who was the defendant in this case, and found a small baggie of marijuana. The trial judge denied a motion to suppress. On appeal, the court reversed because there was no probable cause to arrest the defendant prior to the search of his person. The court concluded that there was no evidence to show that the defendant had knowledge of the marijuana in the ashtray. "We find it significant that the deputy's testimony did not indicate that the marijuana in the ashtray had been smoked recently." Mere proximity to the contraband was insufficient. Zandate v. State, 779 So. 2d 476 (Fla. 2d DCA 2000).

l.  Juvenile court warrants remain valid until successfully challenged or revoked by the court even where the offender reaches the age of majority before it is executed. Campbell v. State, 571 So. 2d 415 (Fla. 1990).

m.  Where the police rely upon known and reliable informants, as long as the information is sufficiently detailed and can be verified, a detention and search based upon such information will be upheld. State v. Flowers, 566 So. 2d 50 (Fla. 2d DCA 1990). For a case dealing with the need for sufficient corroboration see Key v. State, 553 So. 2d 301 (Fla. 1st DCA 1989).

n. Where an officer mistakenly believed that the defendant was the person named in a warrant, that mistake did not invalidate the arrest where the error was reasonable under the circumstances. This result was not altered by the fact that the true subject of the warrant was already in custody because there was no showing of excessive delay in purging the records of the warrant. Mayberry v. State, 561 So. 2d 1201 (Fla. 2d DCA 1990).

o.  At 4:00 a.m. an officer discovered a recent burglary and theft of several rolls of change from a diner. The cook at a nearby restaurant told the officer that, during the past few hours, the defendant, and another person had paid for a meal with change and had played video games requiring coins at a nearby convenience store. This caused the officer to suspect that the defendant was involved in the theft because he knew the defendant was in financial distress and was unlikely to have a lot of money. He knew that the defendant was living in a friend's tree house so he and another officer went there and did a warrantless search and asked the defendant to empty his pockets. They discovered coins. The Court held that there was no probable cause for the search. Talley v. State, 581 So. 2d 635 (Fla. 2d DCA 1991).

p.  The fact that the officer observed rolling papers in the defendant's shirt without more was insufficient for a search where the only other circumstances were that the defendant was asleep in a legally parked car at about 10:00 or 11:00 p.m. Sites v. State, 582 So. 2d 813 (Fla. 4th DCA 1991).

q.  Where an officer had reasonable suspicion to believe the defendant might be violating the drug laws in his vehicle and a canine unit alerted on a specific place in the interior of the vehicle he had probable cause for a search and upon discovering drugs an arrest. Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991).

r.An officer had reasonable suspicion to believe that the owner of the vehicle in which the defendant was a passenger was violating the drug laws. A search of that vehicle revealed that cocaine was in a compartment on the back of the front passenger seat. The defendant was in the front passenger seat. Three other people were in the rear of the vehicle. They were all asked to exit the vehicle when it was stopped. The defendant had not been implicated in any way in the drug activity except for her presence in the vehicle. After the drugs were found hidden in the compartment an officer insisted that she allow him to search her purse. Drugs were found. A Motion to Suppress was denied. On appeal the court reversed and stated: (1) in order for the search of her purse to be valid the officer would have to have had probable cause as to each of the elements for constructive possession since there was no indication that the defendant was in actual possession; (2) that means that the officer would have to have had reasonable grounds to believe that the defendant: (a) knew of the presence of the drugs, (b) knew of the illicit nature of the drugs, and (3) had or shared dominion and control over the drugs. Mere presence near the drugs is insufficient to establish such probable cause. There was no evidence of each of the three elements. For additional facts see discussion under investigatory stops. Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991).

s.  "The existence of probable cause is measured by an objective standard, not based on an officer's underlying intent or subjective motivation." State v. T.P., 588 So. 2d 286 (Fla. 3d DCA 1991).

t.  "Probable cause to arrest is determined upon the totality of the circumstances with which the officer finds himself confronted, in light of the officer's knowledge and experience." The court found that there was probable cause for arrest based on the following circumstances: (1) the officer observed the defendant for about an hour at night in an area frequented by drug dealers; (2) the officer saw the defendant standing as if he were waiting for something or someone to come along; (3) the defendant was standing in an area not normal for pedestrian traffic; (4) the defendant walked in the opposite direction each time the patrol car approached and acted nervous; (5) later that night the officer saw the defendant partially concealed in the woods; (6) the officer then approached the defendant and asked him if he would mind emptying his pockets; (7) the defendant pulled out his front pockets and produced a package of cigarettes from the back pocket; (8) he pulled a small plastic bag out of his pocket and attempted to conceal it; (9) the officer noted that based on his experience such bags are used to carry narcotics and the way the defendant was tried to conceal it is a common method used to attempt to hide drugs from officers. "An officer may properly take into account such circumstances as these in determining the existence of probable cause to believe that 'an innocuous item' contains contraband." Harris v. State, 590 So. 2d 551 (Fla. 1st DCA 1991).

u.  The court found that an officer had probable cause where: (1)an officer stopped a vehicle on a traffic matter; (2) since the windows were tinted he asked the occupants to exit; (3) upon exiting the defendant attempted to hide the front of his body by walking sideways; (4) the officer noticed a bulge in the groin area which was about 8 inches long and 4 inches wide; (5) the officer thought it might be a weapon; (6) the officer alerted another officer who also saw the bulge and thought it might be a weapon; (7) the second officer placed the defendant against his car and told him to remove the object; (8) when the defendant failed to comply, the officer performed a pat down and realized that the bulge was not a weapon; (9) he believed that it was cocaine because of the texture of what appeared to be a plastic bag and "'the peanut brittle type feeling in it'"; (10) the officer testified that he had made over 250 arrests for possession of a controlled substance, had been present during about 1000 such arrests, and had seen or felt crack cocaine about 800 times; (11) the officer testified that during 130 search warrant arrests, he had discovered cocaine hidden in the groin area on 70 occasions. All of these facts, including the specific information, was sufficient to establish probable cause. In proving probable cause "The State must present more than the naked subjective statement of a police officer who has a 'feeling' based on 'experience' that the accosted citizen is committing a crime in order to provide the court with facts upon which a determination of probable cause can reasonably be made." Doctor v. State, 596 So. 2d 442 (Fla. 1992).

v.  Even where sufficient information is provided by an unidentified informant to justify an investigatory stop the officer may not conduct a search or make an arrest. "When that type of verifiable information is furnished together with unverifiable allegations of criminal activity, a detention and search of a person so anonymously informed against is not authorized. There must be independent evidence of criminal activity apart from the otherwise verified anonymous tip to support a search of the described suspect." The fact that an unidentified informant gave detailed information that anyone could have known, which was confirmed, may be sufficient for a stop, but it was not sufficient for a search. Furthermore, the fact that a suspect who was described by the informant as dealing drugs began to flee does not provide sufficient grounds for a search. Cunningham v. State, 591 So. 2d 1058 (Fla. 2d DCA 1991).

w.  "We hold that when a trained law officer observes a particularly nervous driver accompanied by occupants of the vehicle who cannot agree if they are related or not and then finds conclusive evidence that the gas tank has been altered and the vehicle is on a highway frequented by drug smugglers, probable cause exists to extend a consent search into a probable cause search." State v. Jones, 592 So. 2d 363 (Fla. 5th DCA 1992).

x.  "A description in a police BOLO, coupled with proximity in time and place to the scene of the crime, furnish reasonable grounds for an officer's belief that appellant had committed a felony." State v. Joseph, 593 So. 2d 594 (Fla. 3d DCA 1992).

y.  A defendant was stopped pursuant to a BOLO. There was a question as to the validity of the stop. During the contact the officer thought the defendant was about to flee and grabbed him. There was a struggle and drugs fell from the defendant's pocket and the officer seized them. The seizure was upheld. The court said, "a battery upon a law enforcement officer, even one attempting an invalid arrest, is illegal. Hence, in this case, evidence seized as incident to the lawful arrest for resisting arrest with violence is not subject to suppression." Reed v. State, 606 So. 2d 1246 (Fla. 5th DCA 1992).

z.  Incorrect information was communicated to the arresting officer indicating that the defendant's license was suspended. This resulted either from miscommunication or misinterpretation. "Based on the 'collective knowledge' or 'fellow officer' rule, an otherwise illegal arrest cannot be insulated from challenge by the fact that the arresting officer relied on erroneous radio information from a fellow officer." This is not a mistaken identity case. The initial stop for equipment violation was proper, but the arrest for driving on a suspended license was unlawful. Walker v. State, 606 So. 2d 1220 (Fla. 2d DCA 1992).

aa.  An officer stopped the defendant for speeding. He was erroneously told over the radio that the defendant had a suspended license and then subsequently that it was expired, canceled, or revoked. The officer arrested the defendant, did a pat-down search, and discovered marijuana. It turned out that the defendant's license had been expired for less than four months, which is an infraction for which no arrest is authorized. Thus, pursuant to State v. White, 660 So. 2d 664 (Fla. 1995), the search was unlawful. White holds "that an arrest based on erroneous computer information supplied by law enforcement personnel required suppression of the evidence seized incident to the arrest." Bruno v. State, 704 So. 2d 134 (Fla. 1st DCA 1997).

bb.  Under the "fellow officer rule" a/k/a the "collective knowledge doctrine" an arresting officer may assume probable cause to arrest based upon information supplied by other officers. The arresting officer may make a valid arrest despite his/her lack of personal knowledge if the police, as a whole, have sufficient information to establish probable cause. The same is true of reasonable suspicion. The arrest or stop is valid if the arresting or stopping officer acts upon the direction or as a result of a communication from a fellow officer or another police department who had probable cause or reasonable suspicion. Voorhees v. State, 699 So. 2d 602 (Fla. 1997).

cc.  One officer (Officer A) had knowledge that the defendant was involved in a pending deportation proceeding, was always armed, and had been previously apprehended by INS. That officer asked another officer (Officer B) to stop the vehicle in which the defendant was a passenger. After stopping the car, Officer B patted the defendant down. Officer A was standing next to Officer B during the pat down. Officer B discovered a gun. Officer B said that he patted the defendant down for officer safety, but that he had no idea who the defendant was or whether or not he was armed. "Not knowing these things he had to assume the worst, so he patted [the defendant] down." The trial judge denied a motion to suppress. On appeal the court affirmed. An INS agent had the right to question aliens about their immigration status. "In order to justify a seizure, however, the agent must articulate objective facts providing a reasonable suspicion that the subject of the seizure was an alien illegally in this country." Here the INS agent (Officer A) had sufficient facts to establish reasonable suspicion. He testified that he knew that "Smith was previously apprehended by INS, was involved in a pending deportation proceeding, and was known to be always armed." While Officer B had none of this information, he had the authority to detain the defendant pursuant to the "fellow officer" rule. Which allows an officer to presume that his or her fellow officers who tell him to make a stop have probable cause or reasonable suspicion. "It is enough that the police officer initiating the chain of communication either had first-hand knowledge or received information from some person, usually the victim, official source, or eye witness, who it seems reasonable to believe is telling the truth. See Salas v. State, 246 So.2d 621, 622 (Fla. 3d DCA 1971). The "fellow officer" rule is applicable whether the communication is from a superior, a fellow officer with the same police department, between different agencies or agencies at different levels within a state, between officials in different states, and between federal and state or local authorities." Smith v. State, 719 So. 2d 1018 (Fla. 3d DCA 1998).

dd.  An officer was watching an intersection from a tree for the purpose of catching people running a stop sign. The officer directed another officer to stop the defendant’s vehicle. As a result contraband was discovered. The trial judge granted a motion to suppress because the officer in the tree did not come down and identify the vehicle. On appeal, the court reversed. "The ‘fellow officer’ rule or doctrine ‘operates to impute the knowledge of one officer in the chain of investigation to another.’ State v. Evans, 692 So.2d 216, 218 (Fla. 4th DCA 1997). As stated in Crawford v. State, 334 So.2d 141, 142 (Fla. 3d DCA 1976), an ‘arresting officer is not required to have sufficient firsthand knowledge to constitute probable cause. It is sufficient if the police officer initiating the chain of communication ... had first hand knowledge.’ Huebner v. State, 731 So.2d 40, 44 (Fla. 4th DCA 1999); see also Ferrer v. State, 785 So.2d 709, 711 (Fla. 4th DCA 2001)(same)." State v. Adderly, 809 So. 2d 75 (Fla. 4th DCA 2002).

ee.  Where officer observed the defendant make an abrupt U-Turn and proceed through a residential area at speeds exceeding 80 m.p.h., he had probable cause to make an arrest for reckless driving. State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992).

ff.   The officer had facts indicating that some occupants of a vehicle may have been involved in a petit theft of cigarettes. When the defendant, who was a passenger, exited the vehicle after it was stopped, the officer observed two packs of cigarette of the type that had been stolen on the floor of the passenger side. There were no markings, however, indicating that they came from the involved store. The officer arrested the defendant for retail theft and searched the defendant. On appeal the Court found the arrest unlawful. "Without more than occurred here, the mere fact that the appellant was a passenger in a car also containing a person who was suspected of a crime is insufficient to create probable cause." Giles v. State, 598 So. 2d 209 (Fla. 2d DCA 1992).

gg.  During a traffic stop the defendant, while reaching over to the glove department, picked up a piece of paper which was folded into a small opaque square and put it in his pocket. The officer's observation of the opaque paper did not give him probable cause to search the defendant. Bozeman v. State, 603 So. 2d 585 (Fla. 2d DCA 1992).

hh.  Where officers observed a firearm which was readily visible when they looked into the car they lacked probable cause for a search of the car because possession of a gun which is not concealed is not a crime. Patrick v. State, 603 So. 2d 640 (Fla. 2d DCA 1992).

ii.  Where officers testified that upon looking through the windshield of the defendant's car they saw what appeared to be the handle of a large hunting-type knife lying on the floor between the seat and the door. The trial court found that the knife was not concealed for purposes of state statute. On appeal the Court upheld the trial judge. "[T]he knife was not concealed because the officers' testimony clearly shows that from a position outside the vehicle and without squatting or bending down they immediately recognized a knife and sheaf between the driver's seat and the door." The officer's arrested the defendant for carrying a concealed weapon and searched the vehicle finding other evidence. The court found that the search was improper because there was insufficient basis for the arrest. State v. Hardy, 610 So. 2d 38 (Fla. 5th DCA 1992).

jj.  An officer told the court when he felt a hard object during a pat down he was suspicious that it was cocaine, but he wasn't sure and that there was no way of knowing without seeing it. This was insufficient to establish probable cause for a search of the defendant's person. Hamilton v. State, 612 So. 2d 716 (Fla. 2d DCA 1993).

kk.  An officer made a lawful traffic stop of the defendant and his companion on a bicycle in the early morning hours. During the course of the contact, which included the issuance of a ticket, the officer observed in plain view that the defendant was holding what appeared to be a flight bag with two name tags on it, which bore the name Ms. Drysdale rather than the name of the defendant. These facts were sufficient to give the officer reasonable suspicion to detain the defendant beyond the time it took to issue the citation. The officer then had the right to demand an explanation, which he did. The defendant was unable to provide a response. According to another officer the defendant said that the bag belonged to his grandmother, but he did not state that her name was Ms. Drysdale. That officer also noted that the defendant had initially attempted to hide one of the name tags from him. Under these circumstances the court held that the officers had probable cause to arrest the defendant for theft of the bag and its contents. A search of the bag was then incidental to a lawful arrest. State v. Banfield, 614 So. 2d 551 (Fla. 2d DCA 1993).

ll.  An officer stopped the defendant for being on the property of a public housing project. The basis for the arrest on the charge of trespass given by the officer was a refusal or inability by the defendant to give the name of the person that he claimed he was there to visit. As a result of a search, evidence of drugs was found in the defendant's mouth. On appeal the court held that the arrest was without probable cause and that a motion to suppress should have been granted. A trespass occurs as to property other than a structure or conveyance when a person, without authorization, license, or invitation, willfully enters or remains on another's property where notice against entering or remaining has been given, either by actual communication to the offender or by posting, fencing or cultivation. In this case there was no probable cause because "there was no evidence of actual or constructive notice to the defendant against entering or remaining on the grounds of the public housing complex." Jones v. State, 613 So. 2d 127 (Fla. 3d DCA 1993).

mm.  The officer did not have probable cause to arrest the defendant for trespass; therefore, the arrest was unlawful. There was no actual communication to the defendant that he was not to enter or remain on the premises. The property was not posted. Assuming he was on "unenclosed curtilage," his act of putting something down his pants did not give rise to probable cause to believe that he was committing an offense on the property. Wright v. State, 792 So. 2d 1264 (Fla. 4th DCA 2001).

nn.  The defendant voluntarily opened her mouth and the officer observed cocaine. Based on those observations the officer had probable cause to believe that the defendant had drugs in her mouth and the officer had the right to force the defendant's mouth open. This is in contrast to the situation where the officer acknowledged that the item in the defendant's mouth could have been something other than drugs. Drayton v. State, 601 So. 2d 1248 (Fla. 2d DCA 1992).

oo.  A mall security officer had given the defendant both an oral notice and a written notice. The latter contained a six month limitation period, which the oral notice did not. The written notice was approved by the local police which had adopted the limitation period. Six months had expired from the time of both the written and oral notice. The defendant was seen in the mall and was arrested. Evidence was secured as a result of a search of the defendant. A motion to suppress was granted apparently on the grounds that the detention was unlawful because the six months had expired. On appeal the court ruled that the policy of a police department could not amend a statute. The statute contains no time limitation and the owner of a quasi-public establishment such as the mall involved in this case has the right to impose "reasonable nondiscriminatory restrictions pertaining to the use of" such a facility. Here the defendant had previously stolen from the stores in the mall. The court found the restriction reasonable and that the oral notice constituted a withdrawal of the implied invitation to enter the mall until further notice. State v. Woods, 624 So. 2d 739 (Fla. 5th DCA 1993).

pp.  Where the defendant had been lawfully stopped for investigation and detained for twenty minutes without questioning, officers developed probable cause to arrest him based on a statement that he was the owner of drugs found in a home occupied by another person and that he had paid her to store the drugs. His arrest after being detained for twenty minutes without being questioned was lawful. State v. Hanna, 622 So. 2d 46 (Fla. 3d DCA 1993).

qq.  An officer had probable to believe the defendant had drugs where: (1) he was in a area known for drug deals; (2) he saws the defendant handing money to another man; (3) the man took the money and opened his cupped hand toward the defendant; (4) the defendant looked into the hand, hesitated for a few seconds, and then reached in and took a small item; (5) the defendant immediately placed the item into his mouth; (6) the officer recognized both men as having previously been arrested for drug activity; (7) the officer had extensive experience and training in drug law enforcement; (8) because of the way the defendant pinched the object while picking it up, the officer believed it was rock cocaine; (9) it is common for drug users to place rock cocaine in the mouth in this fashion because it is a non-water soluble drug and can be easily transported in this fashion; (10) the hesitation that was observed was consistent with the selection involved in a drug purchase. All of these factors were properly considered and together established probable cause. A money transaction is not enough, but here there was much more. State v. Caicedo, 622 So. 2d 149 (Fla. 3d DCA 1993).

rr.  For an example of a finding of probable cause in a telephone fraud case see. State v. Aqqad, 637 So. 2d 255 (Fla. 2d DCA 1994).

ss.  The defendant was taken into protective custody under the Myers Act. As a result drugs were found on his person. Before that was done a woman, who was with the defendant on the street, said he had struck her. She had a cut lip. On appeal the court held that there was probable cause for a domestic battery arrest even though there was nothing indicating the relationship between the parties. That was important since there can be an arrest without a warrant for a domestic battery unlike other batteries. So the search could also be justified as incidental to a lawful arrest. State v. Hutchins, 636 So. 2d 552 (Fla. 2d DCA 1994).

tt.  The evidence, when considered in a light most favorable to the state, established that at about 11:30 p.m. an officer was contacted by a known CI. The officer had used information from this information many times in the past and it has resulted in felony arrests about 60 to 70 percent of the time. The CI told the officer that a black male, about 5'10" tall, wearing a black jacket, white t-shirt, and blue jeans, was selling powdered cocaine on the sidewalk in front of a specific address. The officer knew that location to be part of an area with a high volume of street level drug sales. The officer had seized cocaine at the same location a couple of months before. The CI told the officer that the drug dealer wrapped cocaine inside rolled-up one-dollar bills and placed them in his pants pocket ready to sell. Within 15 minutes of receiving the tip the officer saw the defendant standing on the sidewalk in front of the specified location. The defendant's clothes and appearance was exactly as the CI had described. The only other person in the location did not match the description. The officer approached the defendant. he patted down the defendant and felt a large, soft bulge in the defendant's pocket. The officer asked the defendant about the bulge. The defendant said that it was 28 one dollar bills. The officer reached into the defendant's pocket and retrieved the money, but found no cocaine. He reached into the pocket again and retrieved another folded dollar bill which contained powdered cocaine as the informant had described. The trial judge found that the CI provided probable cause for an arrest and search considering the totality of the circumstances. The First District reversed and certified conflict with other districts. The Supreme Court reversed the First District. The court went through a lengthy analysis, but these points were particularly important: (1) even though the tip did not contain the exact basis of knowledge, it did provide an abundance of detail; (2) personal knowledge could be inferred from the manner of packaging of the drugs and their exact location on the defendant's person; (3) there was a strong showing of the CI's veracity; (4)"Similarly, under Gates and its progeny, we conclude that the seemingly innocent activity observed here could be used by the police to verify the informant's tip[;]" (5) within minutes the police corroborated every item in the tip except for the fact that the defendant was carrying drugs; (6) the officer had other information which together contributed to the impact of the totality of the circumstances. The court goes through the history of the development of this area of the law. State v. Butler, 655 So. 2d 1123 (Fla. 1995).

uu.  There was some dispute as to whether the involved deputy's appointment might be irregular because the oath was improperly administered. This was a case certified from county court. On appeal the court found that it was unnecessary to resolve the issue as to the validity of the oath because at the very least the deputy was a de facto officer at the time of the arrest. "It is clearly established that the acts of officers in these categories are valid as to third persons and the public until their title to office is judicially adjudged to be defective." Farrell v. State, 650 So. 2d 88 (Fla. 4th DCA 1995).

vv.  The defendant was arrested for an ordinance violation for which there was no jail sentence. A search incidental to arrest discovered cocaine. The trial judge denied a motion to suppress. On appeal the court reversed. "It was illegal to arrest him for violating the ordinance or to search him incidental to that illegal arrest.... This ordinance did not provide for jail and therefore it did not provide for a full custodial arrest. Consequently, the officer had no authority to conduct a full custodial search of [the defendant] incident to the 'arrest'." The court noted that if an officer has reasonable suspicion to believe the defendant is armed the officer can do a pat down even where the stop is for an ordinance violation with no possible jail term. Beles v. State, 650 So. 2d 1092 (Fla. 3d DCA 1995).

ww.  The officer had probable cause. "In the present case the officer stopped the defendant in an alleyway behind closed businesses in the dark at six o'clock in the morning. This was in a deserted commercial area where no businesses were open. Defendant was carrying what appeared to be a sack containing squared-off objects that looked like appliances. When the defendant dismounted from his bicycle, he put the bag on the trunk of the officer's police car. On closer inspection, the officer could see that the bag was actually a makeshift container fashioned from a shirt, which would not be the customary method of carrying a piece of electronic equipment, but might well be fashioned as a temporary container for stolen goods. In response to the officer's question, the defendant claimed that his address was outside of Dade County, although he was riding a bicycle in a municipality well inside Dade County. The officer twice asked the defendant what was in the bag. The defendant twice gave the untruthful statement that the sack only contained a VCR, when the officer could plainly see a compact disc player protruding from the shirt sleeve. This occurred in an area with a recent burglary problem, and the officer was, in fact, on burglary surveillance at the time of these observations." It was not necessary for the officer to have actual knowledge that a burglary had occurred to have probable cause to arrest the defendant. State v. Russell, 659 So. 2d 465 (Fla. 3d DCA 1995).

xx.  The defendant argued that his arrest was without probable cause. On the day of the arrest the arresting officer had a conversation with another officer. That person told the arresting officer that the defendant was suspected of murder. She showed the arresting officer a photograph of the suspect and said that an arrest warrant was being obtained at that time. The warrant was in fact issued and mentioned on a radio dispatch. The arresting officer did not hear the radio report about the arrest warrant before he saw the defendant. When he saw the defendant he arrested him, based on his conversation with the other officer and without knowledge as to whether the warrant in fact had issued. Some courts have required "a direct communication link between officers who possess probable cause and the arresting officer. This often takes the form of a direct order that the arrest be affected ... but also can consist of general communications among officers at least one of whom possesses probable cause....[T]here is competent substantial evidence that [the arresting officer] fell within this particular category, since [the officer who told him about the situation of the defendant] had been in communication with persons who possessed probable cause and later communicated that confirmation to the [arresting officer]. We thus believe that the arrest, at a minimum, was supported by probable cause under the fellow-officer rule. Alternatively, we believe the existence of a valid warrant prior to arrest is itself sufficient to justify the arrest under the facts at hand. " Johnson v. State, 660 So. 2d 648 (Fla. 1995).

yy.  Officers were in an area known for drug activity and there had been a number of citizen complaints about people selling crack in the area. Two officers saw the defendant standing alone on the corner. They called out to him. The defendant approached the passenger side of the patrol car. The officer who was on the passenger side asked the defendant to step away from the car so that the officer could exit the car. As the officer pushed on the door to open it, the defendant held the door shut. The officer testified that the defendant was free to respond to him or not until he did that. The defendant then ran from the car and the officers chanced him. When they cornered him, one officer asked him why he had run. The defendant said he had just sold some crack cocaine to somebody. The officers arrested him and seized drugs from him. The act of holding the door closed was "extremely unusual behavior" and it created a founded suspicion. His flight provided additional grounds. The defendant's statement about selling crack provided probable cause for arrest. State v. Hamilton., 665 So. 2d 310 (Fla. 2d DCA 1995).

zz.  An officer saw a car at night across an intersection from him with its high beam headlights on. The officer turned around and stopped the car. The officer informed the driver that he had been stopped for the high beam violation, a civil infraction under § 316.238(1). The driver was unable to produce a driver's license. He appeared nervous, was shaking, and began looking around and began to sweat. He told the officer that he had only met his passenger a couple of hours before the stop. That was the defendant. The officer then spoke with the defendant. He told the officer that he knew the driver "for a while." The officer then returned to the driver. His head, shoulders, and arms moved up and down like he was rocking from side-to-side and back forth. The officer did not find this movement unusual, but in combination with the conflict of statements concerning how long the driver had known the passenger and the driver's nervousness, they caused the officer to believe that the defendant-passenger had either just been involved in a crime, was about to be, or was so involved at that time, possibly involving narcotics. It was then that the officer decided that the defendant was not free to go, but he did not tell this to the defendant. The officer called for a backup and a K-9 unit. Within 30-45 seconds after two more officers arrived, the defendant ran away and two officers chased him. The stopping officer arrested the driver for not having a valid license and searched the car. He discovered a concealed firearm under the passenger's seat. He then told the other officers by radio about this discovery. Another officer heard the report, captured the defendant and arrested him. He searched the defendant's person and discovered drugs. The trial judge denied a motion to suppress. On appeal the court affirmed because at the time of the search there was probable cause to arrest the defendant for carrying a concealed firearm. Robinson v. State, 667 So. 2d 384 (Fla. 1st DCA 1995).

aaa.  Officers were investigating a domestic disturbance. There had been information that one of the parties might have a gun. There were three individuals involved. The officers frisked them and found no gun. While the officers attempted to interview the witnesses, the wife, who was the defendant, "was very agitated, yelling and screaming and interfering with the investigation...." One detective asked the defendant four times to stop interfering. "At one point, she placed herself between the Detective and her husband as the Detective was trying to question the husband." The detective told the defendant to sit down and stop interfering. When she failed to follow those instructions for the fifth time the officer arrested her for resisting without violence. On appeal the court held that the officer had probable cause. The court also rejected the defendant's argument that she was merely exercising her First Amendment rights. "This is quite different from S.D. v. State, [627 So.2d 1261 (Fla. 3d DCA 1993)]. When she failed to comply with their requests and in fact placed herself between the officer and her husband whom they were questioning, the Officers were justified in arresting her." Lawrence v. State, 668 So. 2d 701 (Fla. 5th DCA 1996).

bbb.  "A person who is trained to recognize the odor of marijuana and who is familiar with it and can recognize it has probable cause, based on the smell alone, to search a person or a vehicle for contraband." T.T. v. State, 594 So. 2d 839 (Fla. 5th DCA 1992). See also State v. Bowden, 538 So. 2d 83 (Fla. 2d DCA 1989); State v. Jarrett, 530 So. 2d 1089 (Fla. 5th DCA 1988).

ccc.  The officer had lawfully stopped the defendant in a vehicle. A knapsack was in the car next to the defendant. An odor of marijuana came from the knapsack. That gave the officer probable cause to search the knapsack. Indialantic Police dept. v. Zimmerman, 677 So. 2d 1307 (Fla. 5th DCA 1996).

ddd.  "While we have held that the smell of cannabis alone can provide probable cause to search, we do not think we have held that odor alone is probable cause to arrest a person." State v. Reed, 712 So. 2d 459 (Fla. 5th DCA 1998).

eee.  The court found that the officer had probable cause to arrest the defendant. The officer "retrieved a cigar he suspected Reed had just discarded, which smelled of burning cannabis, and when Reed returned to his presence, [the officer] detected the odor of cannabis on [the defendant’s] person. That plus Reed’s implied admission he had been smoking the cigar and that it was cannabis - in response to [the officer’s] query whether he had more contraband on his person - gave [the officer] probable cause to believe a crime had been committed and that Reed had committed it." State v. Reed, 712 So. 2d 459 (Fla. 5th DCA 1998).

fff.  Officers had a tip from a ticket seller that when he sold some tickets to the defendant he saw a handgun on the floorboard of the passenger side of the vehicle. The officer corroborated it when he looked in the car and saw a portion of the gun in plain view. This was in contrast to the situation in Whiting v. State, 595 So. 2d 1070 (Fla. 2d DCA 1992), where the tip was just that there was a firearm in the vehicle, but no indication that it was concealed. Thus, in this case the officer had problem cause to arrest for a violation of the concealed firearm statute. State v. Williams, 679 So. 2d 1248 (Fla. 4th DCA 1996).

ggg.  In June of 1995 a detective received information from an allegedly reliable informant that the defendant sold cocaine out of a local bar. The informant gave the detective the defendant's address, a description of her car, and the tag number. On June 30, 1995, the informant told the detective that the defendant was then selling cocaine at the bar. The detective could not respond. Several hours later the informant told the detective that the defendant had just left the bar in her vehicle to go home and get more cocaine. The detective proceeded to the defendant's address where he found her car parked in the driveway. After five minutes the defendant left and began to drive along a route headed back to the bar. A marked police car stopped the defendant. The defendant consented to a search. The trial judge found that the stop was a pretext. On appeal the court held that the question was whether there was probable cause for the stop and the court found that there was. "The court in Butler recognized that a warrantless search is justified as founded on probable cause where, as here, the informant is known to be reliable, the informant's personal knowledge could be inferred from the details provided, and recent activity observed by the police could be used to verify information provided." Cochran v. Godon, 679 So. 2d 367 (Fla. 4th DCA 1996).

hhh.  An under cover agent was sitting in an unmarked car in a night club parking lot. The defendant approached him and asked for rolling papers "so he could roll a joint." The officer had just overheard the defendant ask two other people for rolling papers. When a marked patrol car rolled into the parking lot, the defendant ran. The undercover officer detained him and did a pat down, which revealed cocaine. The trial judge denied a motion to suppress. On appeal the court reversed. The request for rolling papers showed intent to smoke marijuana, but "it gave rise to two equally possible inferences: one that the appellant was in present possession of marijuana and two, that he was not. A probable cause determination will not arise where the conduct is at least equally consistent with noncriminal activity." Angaran v. State, 681 So. 2d 745 (Fla. 2d DCA 1996).

iii.  "Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are common sense, nontechnical conceptions that deal with ' 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'' [citations omitted] We have described reasonable suspicion simply as 'a particularized and objective' basis for suspecting the person stopped of criminal activity [citation omitted] and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found [citations omitted]." Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

jjj.  Officers detained the defendant pursuant to Orlando's Youth Protection Ordinance, which prohibited minors from being present in downtown Orlando between certain hours, with some exceptions. The officers searched him and found a lot of money. The trial judge denied a motion to suppress. On appeal the court reversed. That ordinance only gave officers the authority to detain a minor if there was probable cause to believe that the minor had been abandoned or neglected or was in immediate danger from his surroundings and that his removal was necessary for his own protection. In this case there was no such probable cause and the officers only detained the defendant because he had no identification. Thus, the detention and the search was improper. Cuva v. State, 687 So. 2d 274 (Fla. 5th DCA 1997).

kkk.  The defendant was lawfully arrested for interfering with a drug operation by shouting out warnings to prospective dealers and the search was lawful. Porter v. State, 582 So. 2d 41 (Fla. 4th DCA 1991).

lll.  Officers had a founded suspicion that the defendant might have been engaged in a drug transaction. They did not make the stop. Instead they let the defendant go on his bicycle and warned another officer that the defendant was coming his way. The defendant entered a public restroom. Within minutes he came out and got a small bag and a aluminum beer can from his bike. He then went back to the restroom, entered a stall and closed the door. The officers suspected that the defendant was smoking crack, but they saw no illegal activity, smelled no smoke or the scent of burning drugs. Nevertheless, the officers rushed into the restroom and entered the stall. They caught the defendant in possession of crack cocaine. His motion to suppress was denied. On appeal the court reversed. The defendant had a reasonable expectation of privacy in the public restroom stall. "We cannot conclude, however, that the observance of an exchange, coupled with a hunch that the suspect intends to smoke cocaine through a beer can, are sufficient to reach a finding of probable cause.... (observation of bent beverage can in motel room did not give officer probable cause to conduct warrantless search.) Nor did matters of exigency provide the requisite probable cause; the officers here did not have the 'fresh, direct, uncontradicted evidence' of a criminal event necessary to prevail upon the exigency exception." Ramirez v. State, 654 So. 2d 1222 (Fla. 2d DCA 1995).

mmm.  The court found that an officer had probable cause to search the person of the defendant. He saw "a person known to the officer as one who hangs out on the streets and has been subject to various arrests, after looking around to assure himself that no one was watching, reach into his buttocks area under his pants and produce something from which he extracted something small, which he handed to two persons who had approached him in exchange for something that the officer could not identify. After the exchange, appellant again looked around to see if anyone was watching and replaced his ‘stash’ beneath his pants in his buttocks area." The officer was an experienced narcotics officer and the area was known for drug sales. Despite acknowledging that there were cases to the contrary, the court found that the officer had probable cause. "The officer clearly saw that a commercial exchange took place. Something was given for something else. A contract for the purchase and sale of something was consummated. It is not even necessary that the drugs have been exchanged for money." Williams v. State, 717 So. 2d 1109 (Fla. 5th DCA 1998).

nnn.  The involved officer had extensive training and experience in detecting narcotics and making narcotics arrests. He saw the defendant make several hand-to-hand transactions with people in vehicles. He saw an exchange of money for small packages. His training, experience, and knowledge of the area told him he was watching drug transactions in process." When the defendant saw the officer, he fled. About twenty minutes later the officer saw the defendant, patted him down, and found marijuana. The issue was whether the officer had probable cause. The court recognized conflict within the court. In Walker v. State, 636 So.2d 583 (Fla. 2d DCA 1994), the court ruled in a similar situation that there was not probable cause. In Revels v. State, 666 So.2d 213 (Fla. 2d DCA 1995), the court ruled that there was probable cause. The court chose to rely on Revels and ruled that there was probable cause. There is a strong dissent. D.A.H. v. State, 718 So. 2d 195 (Fla. 2d DCA 1998).

ooo.  Officers received a tip that stolen property was located on the involved premises and they believed that there was probable cause to search the involved backyard. "That [the officer] had a good faith belief there was stolen property on the premises is not dispositive. In order to legally search the property without a warrant [the officers] needed more than probable cause, they also must have been faced with exigent circumstances necessitating immediate action on their part." There were none in this case; therefore, the officers were required to secure a search warrant for the backyard. Potts v. Johnson, 654 So. 2d 596 (Fla. 3d DCA 1995).

ppp.  The officer was advised by a dispatcher that an unknown female had called and identified herself as the defendant’s mother. She stated that her son had just left her and he was intoxicated. She gave specific descriptions of her son and the car and the direction in which she believed her son was driving. Shortly after receiving the information, the officer saw a car matching the descriptions and in the location given by the caller. The officer stopped the defendant and identified the defendant as the driver. A search of the vehicle revealed drugs. The defendant argued that the officer did not have probable cause for the stop because the stop was based on an anonymous tip. The trial judge denied a motion to suppress. On appeal the court affirmed. The court found that the appropriate standard was reasonable suspicion, not probable cause. "[A]lthough the caller was a previously unknown female, the court finds that the tip was not anonymous because the caller identified herself as the mother of the person about whom she was calling." Thus, the court found that she was a citizen informant and, for that reason, her information was at the high end of the reliability scale. The court found that the information had sufficient indicia of reliability because the woman identified herself and the information was specific. The officer was also able to verify some things through personal observation prior to the search. He saw a beer can and a knife in plain view in the vehicle and detected an odor of alcohol coming from the defendant. These observations, along with the information from the mother, gave him probable cause to search the vehicle. Foy v. State, 717 So. 2d 184 (Fla. 5th DCA 1998).

qqq.  While driving with their windows down, "officers passed a large group. They smelled a strong odor of marijuana emanating from the cluster of people." As the officers approached the group, the odor became stronger. When they approached, the defendant started to walk away. When a detective told the defendant that he wanted to talk to him, the defendant continued to walk away. When the detective caught up to him, he noticed the odor. The detective asked the defendant if he could search him and the defendant consented. During the pat-down, the detective felt what he thought was a firearm, but it turned out to be brass knuckles. The defendant again searched the defendant and found marijuana. The detective testified that he was trained to recognize the odor of marijuana and had smelled it many times. The trial court granted a motion to suppress. On appeal the court said: "The odor of marijuana gave the officers probable cause to believe the members of the group had marijuana in their possession and, therefore, to search each person who was present.... The officers observed Hernandez as a member of the group from which the odor of marijuana emanated and, on that basis, had probable cause to stop and search him." State v. Hernandez, 706 So. 2d 66 (Fla. 2d DCA 1998).

rrr.  The defendants were arrested for loitering and prowling and they confessed to certain crimes. The defendants moved to suppress on the grounds that the arrest was illegal. The trial judge granted the motion and the state appealed. The court reversed. A neighbor saw the defendants back their car into the victim's enclosed garage in the middle of the day. The victim was at work. While one defendant stood by the car, the other looked into the window, while calling out to see if anyone was home. The neighbor did not recognize the individuals and called the police. A few minutes later, an officer arrived. The individuals were gone. He interviewed the neighbor and he saw pry marks on the door leading from the carport into the house. He could not determine whether the marks were fresh. That officer sent out a BOLO regarding a possible burglary and giving a general description of the car and its occupants. A few blocks away the defendant ran out of gas. An officer stopped to render assistance. This was about 1:30 p.m.. The defendants told the officer that they were on the way to a friend's house, but they didn't know the name or address of the friend. The officer found that suspicious and asked for identification. The other officer brought the neighbor to the scene and she identified the car as being the one at the scene. At 2:00 p.m. the officers arrested the defendants for loitering. On appeal the court found that the officers had probable cause to arrest for loitering and prowling. State v. Cortez, 705 So. 2d 676 (Fla. 3d DCA 1998).

sss.  Officers had probable cause for defendant’s arrest based on this information: (1) the defendant made inconsistent statements regarding his activities on the night of the murder; (2) he reacted nervously when police falsely reported that a fingerprint had been found on duct tape used in the crime; (3) he had unique knowledge of the location of the duct tape on the victim’s body; (4) unverified information from the victim’s family that the defendant was having difficulty in his relationship with the victim; (5) the defendant had repeatedly lied to police about his activity with the victim on the night of the murder; and (6) the defendant had a strong motive for murdering the victim. Walker v. State, 707 So. 2d 300 (Fla. 1998).

ttt.  The court ruled that the trial judge erred in finding that a C.I. provided sufficient information to establish probable cause for arrest of the defendant. The court reiterated the principle that veracity of the informant must be established. It can be established by proof that the information had provided reliable information in the past or has provided "detailed and verifiable information on the occasion in question." The court found that the evidence failed to meet this test. The officer testified that the informant had provided him with information on five prior occasions that resulted in four arrest for possession of cocaine, but in the previous cases the C.I. had acted as an agent for the police by making a controlled buy. This case was apparently the first case in which the informant actually provided a tip. That tip was merely that two black males, wearing certain common items, were standing in a public place selling narcotics. There was no evidence of the type of drugs, how the informant came by the information, or the manner in which the sales allegedly took place. The State relied here on reliable behavior in the past. "Reliable behavior, however, is not the same thing as reliable information for constitutional standards." Mitchell v. State, 787 So. 2d 224 (Fla. 2d DCA 2001). See also Everette v. State, 736 So. 2d 726 (Fla. 2d DCA 1999).

uuu.  "Probable cause to arrest or search exists when the totality of the facts and circumstances within an officer's knowledge sufficiently warrant a reasonable person to believe that, more likely than not, a crime has been committed. See Curtis v. State, 748 So.2d 370, 374 (Fla. 4th DCA 2000). ‘Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' ‘ Ornelas, 517 U.S. at 695, 116 S.Ct. 1657 (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))." League v. State, 778 So. 2d 1086 (Fla. 4th DCA 2001).

vvv.  "[O]fficers received an anonymous tip that Peanut was selling drugs at his home. Peanut was known to the police and numerous complaints had been made. [T]he officer knew that Peanut had been arrested for drug activity. While anonymous tips are not in and of themselves sufficient to constitute either reasonable suspicion or probable cause, when independent investigation reveals corroboration of the substance of the tip, the totality of the circumstances may rise to either reasonable suspicion or probable cause. (citations omitted) The anonymous tip in this case was corroborated by the independent observation of conduct consistent with a drug transaction. Specifically, a trained officer witnessed a hand to hand transaction involving a known drug dealer where money was exchanged for a small object. We thus conclude that there was probable cause for appellant's seizure." League v. State, 778 So. 2d 1086 (Fla. 4th DCA 2001).

www.  "Although appellant contends that the court should have granted the motion to suppress, we cannot agree. Under the ‘totality of the circumstances’ test announced in State v. Butler, 655 So.2d 1123 (Fla.1995), the officers had probable cause to make the stop. We are persuaded, as was the court in Butler, by the existence of the credible confidential informant, the detail of the tip, and the subsequent corroboration of the tip. See also State v. Flowers, 566 So.2d 50 (Fla. 2d DCA 1990). The officers were told that an individual named Robin, who was at a certain residence on Sumner Drive in K-Ville, had drugs on her person. The confidential informant also said that Robin drove a four-door blue vehicle that was somewhat raggedy. When the officers arrived at the residence within ten to fifteen minutes of the tip, they saw only one vehicle, a small, blue, four-door vehicle, parked on the side of the residence. When they ran the tag number, they discovered that the car was registered to appellant, Robin Vandiver. Ten to fifteen minutes later, the vehicle left, and they could see that a white female was driving. When the officers subsequently stopped the car, they discovered drugs on her person. At each step of the investigation, the officers were able to further confirm the confidential informant's story. This was sufficient corroboration to support the stop." Vandiver v. State, 779 So. 2d 289 (Fla. 2d DCA 1998).

xxx.  An officer observed an exchange of money and drugs, but the officer could not see which of two men actually make the exchange. The officer stopped both men and patted down both men. As a result, the officer found contraband on the defendant, who was one of the two men. The trial judge denied a motion to suppress. On appeal, the court found that the stop was a valid investigatory stop, but the patdown could only be justified if the officer had probable cause to believe that a crime had been committed and that the defendant committed that crime. "Under the first prong of this test, the officer did have probable cause to believe a crime had occurred. He had seen what appeared to be a sale of drugs. The problem lies with the second prong of the probable cause analysis: that the officer must believe McCloud committed the crime. Here, the officer had no idea which of the two men was the perpetrator.... [T]he officer's observations ... did not create probable cause to believe McCloud had committed the crime. Probable cause does not exist where the circumstances are at least equally consistent with noncriminal activity. (citations omitted) Certainly, the circumstances in this case established a possibility that McCloud was the one who sold the drugs, but they were at least equally consistent with his simply being a bystander. If the officers had questioned the men and obtained information that pointed to McCloud as the seller, they might have developed the probable cause necessary for the warrantless search. As it was, the search was illegal and the drugs should have been suppressed." McCloud v. State, 787 So. 2d 218 (Fla. 2d DCA 2001).

yyy.  "[T]he sheriff's office received information from an unknown informant that Kimball was about to deliver ecstacy pills. The informant described Kimball and his automobile in detail. The informant said Kimball was presently en route to the Amoco gas station where he intended to deliver between 400 and 600 ecstacy pills to unknown persons at nine p.m. Deputies responded to the tip by positioning themselves in unmarked cars in the gas station parking lot. As predicted, Kimball entered the Amoco station at nine p.m. in a red Mazda MX 3. When he got out of his car, he was immediately seized and the vehicle was searched." The deputies discovered drugs. The trial court denied a motion to suppress on the grounds that the officers had probable cause. On appeal, the court reversed. "Here, the anonymous informant predicted that Kimball would arrive at the Amoco station at nine p.m. in a red Mazda MX-3. These are innocent details. Nevertheless, in contrast to the tip in J.L., the tip here did include accurate predictions about the suspect’s future actions. While someone may predict that a person will stop and get gas, it is unusual for that person to be able to predict the exact time and location that this will occur. Thus, when the deputies observed Kimball drive into the Amoco gas station at nine p.m., this did impart a degree of reliability to the information that we deem sufficient to support an investigative stop. We conclude, however, that on these limited facts and in the absence of exigent circumstances, consent, or incriminating or suspicious circumstances, the law enforcement agents lacked probable cause to seize Kimball and search the car.... We note that, with regard to the facts and circumstances sufficient to support probable cause, no distinction is made between search of a vehicle or a structure. The special authority to search a vehicle recognized in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and section 933.19, Florida Statutes, excuses only the warrant requirement; it does not reduce the degree of proof necessary to support probable cause to search. E.g., United States v. Mendoza, 722 F.2d 96 (5th Cir.1983)." Kimball v. State, 801 So. 2d 264 (Fla. 4th DCA 2001).

zzz.  "Considering the totality of the circumstances, probable cause was established for Marsdin's detention and the seizure of the bag. Although an anonymous tip, without more, is generally insufficient to demonstrate the informant's basis of knowledge or veracity, see Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), an anonymous tip corroborated by independent police work can exhibit sufficient indicia of reliability to provide reasonable suspicion to conduct a stop or probable cause to search. Id. at 330, 110 S.Ct. 2412. The reliability of such a tip is evaluated, among other considerations, on its degree of specificity, the extent of corroboration of predicted future conduct, and the significance of the informant's predictions. Kimball v. State, 801 So.2d 264, 265 (Fla. 4th DCA 2001)(citing Illinois v. Gates, 462 U.S. 213, 246, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Here, the anonymous tip, combined with independent police observation, was sufficient to provide reasonable suspicion to stop and probable cause to search.... In Kimball, by contrast, the deputies had not observed any suspicious activity prior to the search. Here, however, it was the detective who instructed when and where the drug transaction was to take place. When Marsdin, who matched the informant’s description, followed Lanza's directions, this behavior amounted to more than just innocent activity and was enough to support a finding of probable cause." Marsdin v. State, 813 So. 2d 260 (Fla. 4th DCA 2002).

4.  There must be lawful authority.  [Back]

a.   Misdemeanors, ordinances, and traffic offenses.   [Back]

(1)   A back-up officer may make an arrest for DUI based upon the probable cause of another officer. State v. Eldridge, 565 So. 2d 787 (Fla. 2d DCA 1990). See also State v. Ostrow, 579 So. 2d 292 (Fla. 3d DCA 1991); State v. Mahoy, 575 So.2d 779 (Fla. 5th DCA 1991); McClendon v. State, 440 So. 2d 52 (Fla. 1st DCA 1983).

(2)   An auxiliary trooper (Rayburn) approached the defendant's vehicle. It was apparent to Rayburn that the defendant had been drinking. So he ordered the defendant to remain in the car and radioed for assistance. Rayburn's supervisor (a police officer) arrived at the scene, investigated, and arrested the defendant. At the administrative hearing the defendant argued that his arrest was illegal because the arresting officer did not witness the misdemeanor as required by §901.15(5). The parties conceded that the auxiliary trooper did not make an arrest pursuant to §901.18, which authorizes an officer who is summoned to render aid to make an arrest. That officer has the same authority as the officer calling for aid. On appeal the court reversed because the officer rendering the aid can have only the power to arrest which the person requesting aid has. In this case that power was ambiguous, and was not adequately resolved by the circuit court. The district court, nevertheless, reversed because the statute required the requesting officer to be a "peace officer making a lawful arrest." The State conceded that the auxiliary officer never made an arrest for the DUI. "This concession on the part of the respondent, when we are faced with the clear language of section 901.18, which requires the first officer to be engaged in executing a lawful arrest, provides us no alternative but to conclude that the circuit court's reliance on that section to justify the legality of [the supervisor's] arrest is misplaced." Riehle v. Department of Highway Safety and Motor Vehicles, 684 So. 2d 623 (Fla. 2d DCA 1996).

(3)   96-413, Laws of Florida: Section 901.15 was amended: officer may make a warrantless arrest for chapter 316 violations "upon receiving information relayed to him or her from a fellow officer stationed on the ground or in the air that a driver has violated chapter 316 ... when reasonable and proper identification of the vehicle and the violation has been communicated to the arresting officer."

(4)   Marine patrol officers have the authority to make a traffic stop and then upon finding probable cause to arrest for DUI. State v. Parsons, 569 So. 2d 437 (Fla. 1990).

(5)   The Marine Patrol has the authority to board a boat to check for undersize oysters by virtue of administrative rule and statutory provisions. This does not violate any constitutional prohibitions. State v. Starkey, 605 So. 2d 963 (Fla. 1st DCA 1992).

(6)   If the arrest is for a misdemeanor all elements must occur in the presence of the officer and the arrest must be immediate or in fresh pursuit. State v. Stevens, 574 So. 2d 197 (Fla. 1st DCA 1991). But in another case the Court infers that a notice to appear is not to be treated as an arrest and may be issued even though the offense occurs outside the presence of the officer. State v. Wise, 603 So. 2d 61 (Fla. 2d DCA 1992).

(7) A female officer was summoned to arrest the defendant for nude dancing. She had not witnessed the crime and no officer who had witnessed it testified. Thus, the arrest by the female officer was unlawful since the offense did not occur in her presence. Nesmith v. State, 608 So. 2d 96 (Fla. 2d DCA 1992).

(8)   §901.15(1) precludes an officer from arresting a person for loitering and prowling if each element does not occur in the officer's presence. In this case, the arresting officer did not see the offense, but the defendants were caught at roadside in a car that had run out of gas. On appeal the court said they would have assuredly escaped if the officers had left to obtain a warrant. For that reason the court concluded that the arrest was lawful. "The cases relied on by defendants do not cite or discuss section 856.031 Florida Statutes, which states: '856.031 Arrest without warrant. - Any sheriff, policeman, or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable such suspected loiterer or prowler to escape arrest.'" The court noted that, since the courts so frequently overlook this provision, the legislature should cross reference it in section 901.15. State v. Cortez, 705 So. 2d 676 (Fla. 3d DCA 1998).

(9)   The court ruled, "that when a person is charged with violating a municipal ordinance regulating conduct that is noncriminal in nature, such as in the traffic control area, section 901.15(1) only permits a person to be detained for the limited purpose of issuing a ticket, summons, or notice to appear. A full custodial arrest in such situations is unreasonable and a violation of the Fourth Amendment and article I, section 12 of the Florida Constitution." §901.15(1), provides that "‘[a] law enforcement officer may arrest a person without a warrant when ... the person has violated a municipal or county ordinance in the presence of the officer.’" The Court noted that while the U.S. Supreme Court has permitted searches for traffic violations in Robinson and Gustafson, those cases involved custodial arrests for such violations and the Court in those cases made no comment on "‘a routine traffic stop,’ i.e., when the violator is issued a citation or notice to appear and is allowed to proceed.... Because the latter scenario is all that is permitted by state traffic laws regulating bicycles, Robinson and Gustafson are not controlling." Thomas v. State, 614 So. 2d 468 (Fla. 1993).

(10)   A police officer issued the defendant a traffic citation for speeding rather than arrest the defendant. The officer did a full search of the car based solely on the fact that he issued the citation. The Court ruled that such a search violated the Fourth Amendment. "In Robinson we held that the authority to conduct a full field search as incident to an arrest was a ‘bright-line rule,’ which was based on the concern for officer safety and destruction or loss of evidence, but which did not depend in every case upon the existence of either concern. Here we are asked to extend that ‘bright-line’ rule to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all. We decline to do so. The Court pointed out that, based upon additional facts establishing reasonable suspicion that the defendant is armed, officers might be authorized to do a pat down or an investigatory search of the passenger compartment. Knowles v Iowa, 523 U.S. 113, 119 S.Ct. 484, 142 L. Ed. 2d 492 (1998).

(11)   "[T]he Supreme Court has held that violation of a municipal ordinance is neither a 'crime' nor a 'noncriminal violation' as defined in the Florida Statutes. Thomas v. State, 614 So.2d 468, 472 (Fla. 1993)." Thus, Orlando's Youth Protection Ordinance is neither a crime nor a noncriminal violation. The defendant here looked under 18, but he was 18. Once the officers learned his age they no longer had any authority to detain him. Cuva v. State, 687 So. 2d 274 (Fla. 5th DCA 1997).

(12)   Instructing a defendant that he may be released on a notice to appear does not negate the officer's authority to do a search incidental to an arrest as long as the officer has probable cause. State v. McCray, 626 So. 2d 1017 (Fla. 2d DCA 1993).

(13)   A local ordinance provided for criminal penalties for riding a bicycle without a bell or a gong. On appeal the Court found that the ordinance was unlawful because under state statute such bicycle regulations are civil infractions and a city cannot impose a greater penalty than called for by state statute. The defendant was arrested for violating the ordinance and a search incidental to that arrest revealed a weapon. On appeal the Court held that even though the ordinance was found to be unconstitutional the search was valid. "The arrest was made in reliance on the city ordinance and thus falls within the rule established in Michigan v. DeFillippo, 443 U.S. 31 (1979). The Court in DeFillippo stated that evidence obtained after a search incident to an arrest in reliance on a municipal ordinance should not be suppressed even when the ordinance is subsequently declared unconstitutional." Thomas v. State, 614 So. 2d 468 (Fla. 1993).

(14)   "[T]he standard of probable cause ‘applie[s] to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.’ Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. Atwater’s arrest satisfied constitutional requirements. There is no dispute that Officer Turek had probable cause to believe that Atwater had committed a crime in his presence. She admits that neither she nor her children were wearing seat belts, as required by Tex. Tran.Code Ann. § 545.413 (1999). Turek was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater’s arrest was in some sense necessary. Nor was the arrest made in an ‘extraordinary manner, unusually harmful to [her] privacy or ... physical interests.’ Whren v. United States, 517 U.S., at 818, 116 S.Ct. 1769. As our citations in Whren make clear, the question whether a search or seizure is ‘extraordinary’ turns, above all else, on the manner in which the search or seizure is executed. See id., at 818, 116 S.Ct. 1769 (citing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (‘seizure by means of deadly force’), Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (‘unannounced entry into a home’), Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (‘entry into a home without a warrant’), and Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) ( ‘physical penetration of the body’)). Atwater’s arrest was surely ‘humiliating,’ as she says in her brief, but it was no more ‘harmful to ... privacy or ... physical interests’ than the normal custodial arrest. She was handcuffed, placed in a squad car, and taken to the local police station, where officers asked her to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and released on $310 bond. The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment." Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed.2d 549 (2001).

(15)   Officer Whitehead saw the car swerving and being operated erratically within the city limits. Officer Whitehead sent out a radio transmission. Officer Hardwick responded. Whitehead followed the defendant to the foot of a bridge. The car stopped. Whitehead then followed the car over the bridge and saw it cross the center line four times on the bridge. Whitehead also saw the vehicle almost hit several vehicles in the turn lane of an intersection. Hardwick did not see any of the erratic driving. Hardwick relied on Whitehead’s observations, which he was told about. Whitehead and Hardwick stopped the car outside of the city limits. Hardwick arrested the defendant because he looked drunk and failed field sobriety tests. The defendant refused to take a chemical test. The defendant’s license was suspended. The hearing officer upheld the suspension. The circuit court reversed on the grounds that the officer did not have probable cause for the stop, Hardwick was not in "fresh pursuit," and the fellow officer rule only applies to felonies. On appeal the court reversed. The stop was proper based on fresh pursuit or the felony officer rule. The manner in which the defendant was operating his vehicle was sufficient to justify the stop. "Section 901.18 authorizes an officer to elicit assistance from another officer; and the second officer has the authority to arrest based on the observations and report of the first officer. State v. Eldridge, 565 So.2d 787 (Fla. 2d DCA 1990); Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997); Mahoy. The combined observations of two or more officers may be united to establish probable cause to arrest. Eldridge. The fellow officer rule applies to misdemeanor as well as felony offenses. Eldridge, Mahoy; Steiner. Further, an arrest made outside an officer’s jurisdiction is authorized by §901.25 where, as here, the officer is in fresh pursuit. Cheatem v. State, 416 So.2d 35 (Fla. 4th DCA 1982); Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985). Fresh pursuit included misdemeanor offenses. Edwards. Where there are signs of the offense continuing, the officer has authority to arrest a defendant outside of her jurisdiction for committing the offense within the jurisdiction. Edwards. In this case the erratic driving justified the stop and the defendant’s appearance and conduct after the stop justified the DUI arrest. Dept of Highway Safety and Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).

(16)   "A law enforcement officer may not make a warrantless arrest for a misdemeanor, such as this trespass, unless every element of the crime is committed in his presence. See §§ 901.15(1), Fla. Stat. (1997); Carter v. State, 516 So.2d 312 (Fla. 3d DCA 1987)." In this case, the court ruled that the officers had not observed every element of the involved trespass. For discussion see sec on trespass below. Smith v. State, 778 So.2d 329 (Fla. 2d DCA 2000).

b.   The felony arrest authority under §901.15(11), applies to road guard special officers employed by the department of agriculture and consumer services. Florida Police Benevolent Association, Inc. v. Department of Agriculture and Consumer Services, 574 So. 2d 120 (Fla. 1991).

c.   The defendant was arrested on a warrant for violation of probation and contraband was discovered. The trial judge determined that the defendant had not violated his probation and dismissed the warrant. It was determined that the defendant's probation had been illegally extended without a court hearing or representation of counsel based on the defendant's agreement. The warrant had been issued during this extension. The trial judge ruled that the warrant was void and the arrest was unlawful; therefore, the evidence secured incidental to that arrest had to be suppressed. The court affirmed. A void warrant may not be the basis for a legal arrest and search. State v. Schafer, 583 So. 2d 374 (Fla. 4th DCA 1991).

d.   An arrest was lawful even though some of the investigation took place outside of the investigating officer's jurisdiction where the investigation originated inside of his jurisdiction. Here the ultimate drug deal was outside of the officer's jurisdiction, but the officer called a deputy who did have jurisdiction to take over the investigation. A "municipal police officer has authority to conduct an investigation outside jurisdiction if the subject matter of investigation originated within his or her own jurisdiction." State v. Price, 589 So. 2d 1009 (Fla. 4th DCA 1991).

e.   An officer has no authority to make a stop outside his jurisdiction unless there are exigent circumstances or he is in fresh pursuit. State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA), rev. denied, 591 So.2d 184 (Fla. 1991).

f.   "While investigating a purse snatching that occurred in the City of Miami Shores, a Miami Shores detective received a tip that the vehicle that was used in the purse snatching was parked in front of a motel in the City of Miami. After contacting the City of Miami Police Department, the Miami Shores detective and other Miami Shores police officers proceeded to the motel. In the motel parking lot, they observed a red Nissan pickup truck that matched the description and the license plate number that had been reported by an eyewitness to the purse snatching. The officers kept the truck under surveillance until the defendant and two others got into the truck and started to drive away. The officers in marked cars stopped the truck with guns drawn and ordered the occupants out of the truck." That led to the discovery of a warrant and the arrest of the defendant. After the arrest the defendant was transported and his photo was taken. The trial judge granted a motion to suppress tangible evidence, including the photo because the officers were outside their jurisdiction. On appeal, the court reversed. The involved cities were parties to a mutual aid agreement, which permitted the officers of one city to investigate a felony in another city that occurred in the officer’s city. The defense argued that the agreement specifically excluded "nonconsensual or forcible entries into private dwellings, residences, living spaces or business spaces which are not open to the public" and the vehicle fell within the scope of this exclusion. "In the instant case, the Miami Shores detective acted within the scope of his jurisdiction, pursuant to the Addendum to Joint Declaration to Mutual Aid Agreement, when he investigated a felony in the City of Miami that had occurred within the City of Miami Shores. He properly notified the City of Miami when he received the tip and informed them of his intent to set up surveillance. Further, the Miami Shores detective had a reasonable suspicion, based on the vehicle’s description and license plate number, that the vehicle observed leaving the motel was the same vehicle involved in the robbery. This founded suspicion that the occupants had committed a crime was sufficient to justify an investigatory stop. State v. Ramos, 755 So.2d 836, 837 (Fla. 5th DCA 2000). After running a computer check based on the occupants’ information and finding that the defendant had an outstanding bench warrant, the detective had probable cause to arrest the defendant. Wigfall v. State, 323 So.2d 587, 589 (Fla. 3d DCA 1975). Therefore, the photograph was not the product of an illegal search and seizure. We reverse the order granting the motion to suppress and remand for further proceedings consistent with this opinion." State v. Walkin, 802 So. 2d 1169 (Fla. 3d DCA 2002).

g.   In a forfeiture case the defendant argued that § 321.05 Fla. Stat. restricted the authority of F.H.P. troopers to make warrantless searches to searches incidental to a lawful arrest. The court rejected this interpretation and found that troopers have the authority to act established by the Florida and U.S. Constitutions and other Florida Statutes. Dept of Highway Safety and Motor Vehicles v. Killen, 667 So. 2d 433 (Fla. 4th DCA 1996).

5.  Search may precede arrest as long as there is probable cause. State v. Hernandez, 706 So. 2d 66 (Fla. 2d DCA 1998); State v. Russell, 659 So. 2d 465 (Fla. 3d DCA 1995); Baggett v. State, 562 So. 2d 359 (Fla. 2d DCA 1990); State v. Miller, 565 So. 2d 886 (Fla. 2d DCA 1990); State v. James, 526 So. 2d 188 (Fla. 3d DCA 1988); State v. Smith, 529 So. 2d 1226 (Fla. 3d DCA 1988); State v. Brown, 586 So. 2d 473 (Fla. 4th DCA 1991). State v. Joseph, 593 So. 2d 594 (Fla. 3d DCA 1992); State v. McCray, 626 So. 2d 1017 (Fla. 2d DCA 1993); Butler v. State, 634 So. 2d 700 (Fla. 1st DCA 1994); State v. Harrington, 632 So. 2d 706 (Fla. 4th DCA 1994); State v. Hutchins, 636 So. 2d 552 (Fla. 2d DCA 1994).  [Back]

a.   Despite the foregoing cases, one recent case refers to an earlier decision that causes some confusion. The decision is Melton v. State, 75 So.2d 291 (Fla. 1954). In Melton the Court ruled that because the arrest followed the seizure, the seizure could not be upheld as incident to the arrest. Elliot v. State, 704 So. 2d 606 (Fla. 4th DCA 1997).

6.  Arrest may be on different charge than one later filed as long as there was probable cause. State v. Joyce, 529 So. 2d 791 (Fla.3d DCA 1988).  [Back]

a.   The defendant was ultimately arrested for DUI, although the initial stop resulted from probable cause for reckless driving and fleeing and eluding. The Court said: "The fact that they did not arrest [defendant] on these charges is of no moment; the propriety of an arrest does not turn on the charges upon which the arrest was effected." Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986). See also State v. Orozco, 607 So. 2d 464 (Fla. 3d DCA 1992).

b.   Arrest may be based on any charge for which the officer could have made a lawful arrest even though the arrest on the charged offense was invalid. State v. Carmody, 553 So. 2d 1366 (Fla. 5th DCA 1989). But one court holds that the charge on which the state relies to justify the search must prompt the officers to take action. Robinson v. State, 556 So. 2d 450 (Fla. 1st DCA 1990).

7.  Officer's mistake as to basis for search.  [Back]

a.   It did not matter that the officer mischaracterized his action as a standard inventory search as long as he did a search incidental to arrest. State v. Harrington, 632 So. 2d 706 (Fla. 4th DCA 1994).

b.   For an excellent discussion of the principle that the belief of the officer does not foreclose a finding of probable cause see State v. Sobrino, 587 So. 2d 1347 (Fla. 3d DCA 1991) [Judge Cope dissenting].

c.   In this case the officer did not believe that he had probable cause, when he did have probable cause. On appeal the court said: "It seems well settled that the officer's personal opinion as to whether probable cause exists is irrelevant." The court may find probable cause and uphold a search even though the officer believed that he or she did not have probable cause. Knox v. State, 689 So. 2d 1224 (Fla. 5th DCA 1997).

8.  Must be incidental to the arrest and not remote.  [Back]

a.   Search of a suitcase was invalid where defendant was arrested several blocks from the bus where he shoved an officer and left the suitcase because the search of the suitcase was too remote from the arrest. State v. Brooks, 553 So. 2d 712 (Fla. 4th DCA 1989).

b.   Officers went to the defendant's place of business with a warrant for his arrest for lewd acts involving minors, which included taking photographs of them in the nude. One of the officers knew that the defendant was rarely far away from his camera case. The officers went into the store and asked the defendant where the camera case was and he stated that he did not know. The defendant was escorted outside and then led the officers back in to the store to get some photographs. The defendant was then arrested and removed from the area in a police car. Officers went back into the store and found the camera case within two or three feet from where the defendant had been standing. This was about five minutes after the defendant had been removed from the scene. The trial judge denied a motion to suppress based on a finding that the seizure of the camera case was incidental to a lawful arrest. On appeal the court affirmed. "Because the search was conducted immediately after the arrest, because the camera case was recovered from the area within the immediate control of [the defendant] just prior to and during the arrest, and in light of the exigency of the possibility of lost or destroyed evidence (even if not in the hands of the appellant), we believe the trial court was correct in finding the search of appellant's camera case to be reasonable." Gay v. State, 607 So. 2d 454 (Fla. 1st DCA 1992).

c.   "A warrantless search [of a motel room] incident to a lawful arrest is limited to the area within the immediate control of the defendant." In this case the defendant was arrested outside the motel room; therefore, a search incident to the arrest was not authorized. State v. Futch, 715 So. 2d 992 (Fla. 2d DCA 1998).

9.  What is the proper scope of such a search?   [Back]

a.   Incidental to arrest in home.   [Back]

(1)   Where officers are executing an arrest warrant in a home "as a precautionary matter and without probable cause or reasonable suspicion, [they may] look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that ... there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1073, 108 L. Ed 2d 276 (1990).

(2)   Officers went to the defendant's apartment to investigate reports of a stolen truck. The defendant answered the door. Events at the door resulted in his arrest for resisting arrest without violence. He was handcuffed to a chair in the living room. One of the officers immediately performed a "'protective sweep,' looking in the bedrooms, closets, and bathrooms for possible additional occupants." During this sweep the officer found firearms in the bedrooms or closets. There was no testimony that they were in plain view. The officer admitted that before entering the apartment he had no indication that there were firearms in the apartment. There was no evidence that the officers asked the neighbors, the apartment manager, or the defendant whether anyone else lived in the apartment. The court held that the search of the apartment was impermissibly broad. "In Buie (Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)), the Supreme Court held that police officers making an in-home arrest may as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Thus, Buie recognizes two types of searches pursuant to an in-home arrest: (1) "The initial 'precautionary sweep' without reasonable suspicion extends only to the immediately adjoining spaces, including closets, in which a person could hide." (2) "The latter and broader 'protective sweep,' based on articulable facts, is 'not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.'" At the hearing in this case, "the State presented no evidence to support a precautionary sweep of the bedrooms, closets, and bathrooms. There is no testimony about the size of this apartment, or the location of these rooms. There is no evidence that these rooms were adjacent to or near the living room where Mr. Runge was arrested and handcuffed. Because the State failed to meet its burden to justify the warrantless precautionary sweep of Mr. Runge's apartment, we cannot uphold the search on that basis." The search could not be justified as a protective sweep because there was no evidence indicating that the officers knew of specific and articulable facts that would create a reasonable belief that the area searched might harbor an individual posing a danger to the officers. Runge v. State, 701 So. 2d 1182 (Fla. 2d DCA 1997).

(3)   Where the defendant was lawfully arrested in the kitchen a search of a metal box in the bedroom was unlawful because a search incidental to an arrest may not include the premises beyond where the arrest occurs nor may it include closed or concealed areas in the room where the arrest occurs. McVay v. State, 553 So. 2d 331 (Fla. 4th DCA 1989).

(4)   Officers went to a house to arrest the defendant on a warrant. They did not have a search warrant. They found him sitting on a bed. They immediately arrested him and handcuffed him. An officer observed a bulge in the mattress where the defendant had been sitting. The officer lifted up the mattress and found a handgun. The trial judge granted a motion to suppress the gun because the defendant had been handcuffed and the officers were no longer in danger. On appeal, the court reversed because this was a search incidental to an arrest. "In Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) the United States Supreme Court allowed an unwarranted search of ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary item.’ ... The holding of Chimel has been codified in section 901.21, Florida Statutes, which authorizes an officer making an arrest to search ‘the area within the person's immediate presence or control.’ See also Savoie v. State, 422 So.2d 308 (Fla.1982)(search of defendant's briefcase incident to an arrest upheld even though the search was not done until after defendant had been placed under arrest and handcuffed); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)(search of pocket in defendant's jacket which was zipped closed and had been inside defendant's car upheld, even though defendant had already been arrested and handcuffed, and was being held outside the vehicle). The search under the mattress where appellant was sitting was accordingly proper." State v. Lingo, 796 So. 2d 1238 (Fla. 4th DCA 2001).

b.   Where the defendant was lawfully arrested for obstructing a domestic violence investigation, she asked an officer to take her fanny pack from a vehicle and give it to her husband. As the officer did so, he opened the pack and discovered contraband. A motion to suppress was denied. On appeal the court affirmed. There had been a report that one of the parties had a gun, but none had been found. The defendant argued that the officer was only authorized to pass the item to her husband. "‘This Officer was faced with an on-the-scene determination of what is reasonable conduct when a highly agitated person under arrest in a case involving an allegation of the presence of a firearm asked him to pass a closed pack to the other party to the dispute. Any reasonable officer could be expected to check such a pack for weapons before delivering it.... The test is whether a reasonably prudent officer would be warranted in the belief based on th[e] articulated facts that he is dealing with an individual who could be armed and dangerous. Terry v. Ohio .... Regarding the presence of a weapon, the officer is entitled to rely not just on defendant's assurances and a pat down of the person, but also on his own reasonable inferences from the facts. The facts here justified the search. Defendant argues that even if the arrest was justified, the scope of the search exceeded that which was necessary to eliminate the possibility of a weapon. Officer Callahan testified that the presence of a weapon such as the fountain-pen size firearm could not be eliminated by simply feeling the unopened pack, however.’" Here the search was permissible. Lawrence v. State, 668 So. 2d 701 (Fla. 5th DCA 1996).

D.  Was the search pursuant to voluntary consent?  [Back]

1.  The remaining issue, whether an officer must have a founded or reasonable suspicion of criminal activity or a reasonable belief that the defendant is armed before he or she requests consent to search, is more troublesome.... [W]e are persuaded by the reasoning presented in Albritton that an officer's request for consent to search is not a seizure and, therefore, does not require objective justification. Accordingly, in resolving the divergence of opinion between McElwain and Albritton, we elect to follow Albritton and hold that an officer need not have a reasonable or founded suspicion of criminal activity before seeking consent to search." Watts v. State, 788 So. 2d 1040 (Fla. 2d DCA 2001)(en banc). See also State v. Rivera, 813 So. 2d 233 (Fla. 2d DCA 2002); State v. Carson, 801 So. 2d 165 (Fla. 2d DCA 2001).

2.  Burden of proof where there is no unlawful police activity in initial stop: preponderance of the evidence. Freeman v. State,559 So. 2d 295 (Fla. 1st DCA 1990); Rigol v. State, 561 So. 2d 1308 (Fla. 3d DCA 1990); Velez v. State, 554 So. 2d 545 (Fla. 5th DCA 1989); West v. State, 588 So. 2d 248 (Fla. 4th DCA 1991); Reynolds v. State, 592 So. 2d 1082 (Fla. 1992); State v. Sakezeles, 778 So. 2d 432 (Fla. 3d DCA 2001).  [Back]

(a)   The burden is not met by showing a mere submission to a claim of lawful authority. Washington v. State, 653 So. 2d 362 (Fla. 1994); Hills v. State, 629 So. 2d 152 (Fla. 1st DCA 1993).

(b)   Where the defendant is a passenger seated on a bus and the only way he can leave is to abandon his destination the burden is met if the evidence shows that a reasonable person would believe that he had a right to terminate the contact through means other than leaving the area. Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L .Ed.2d 389 (1991).

(c)   Where the encounter between the defendant and the officer that preceded the consent was consensual, the state had the burden of proving voluntariness by a preponderance of the evidence. State v. Albritton, 664 So. 2d 1049 (Fla. 2d DCA 1995).

(d)   Where the defendant's consent arose from a consensual encounter, there was no taint of unlawful police contact; therefore, the state had to show the voluntariness of the consent by a preponderance of the evidence. State v. Chang, 668 So. 2d 207 (Fla. 1st DCA 1996).

(e)   The court found that the contact between the officer and the defendant had been a consensual encounter. The officer asked the defendant if he could search him. The defendant agreed. On appeal the court said that the state had to prove by a preponderance of the evidence that the consent was freely and voluntarily given because the consent was secured after legal police action. If the police action had been illegal, then the state would have to show by clear and convincing evidence that the consent was freely and voluntarily given. "[B]ecause the only evidence provided was of the voluntary nature of the consent during a police-citizen encounter, the state's burden was met and the evidence should not have been suppressed." State v. Gainey, 688 So. 2d 997 (Fla. 2d DCA 1997).

3.  Burden of proof where unlawful police activity precedes the alleged consent: proof by clear and convincing evidence of an "unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action."  [Back]

(a)   Cases dealing with burden of proof: State v. Blan, 489 So. 2d 865 (Fla. 1st DCA 1986); Peterson v. State, 503 So.1st 1336 (Fla. 1st DCA 1987); Acosta v. State, 519 So. 2d 658 (Fla. 1st DCA), rev denied, 529 So. 2d 695 (Fla. 1988); Rodriguez v. State, 519 So. 2d 1079 (Fla. 1st DCA 1988); Edwards v. State, 532 So. 2d 1311 (Fla. 1st DCA 1988); Hurtado v. State, 533 So. 2d 304 (Fla. 1st DCA 1988); Castillo v. State, 536 So. 2d 1134 (Fla. 2d DCA 1988); Jordan v. State, 544 So. 2d 1073 (Fla. 2d DCA 1989); Thompson v. State, 555 So. 2d 970 (Fla. 2d DCA 1990); Mitchell v. State, 558 So. 2d 72 (Fla. 2d DCA 1990); State v. Butler, 520 So. 2d 325 (Fla. 3d DCA 1988); Alberty v. State, 536 So. 2d 283 (Fla. 3d DCA 1988); State v. Jones, 545 So. 2d 461 (Fla. 3d DCA 1989); State v. Castillo, 545 So. 2d 965 (Fla. 3d DCA 1989); L.S. v. State, 547 So. 2d 1032 (Fla. 3d DCA 1989); Murtha v. State, 547 So. 2d 205 (Fla. 3d DCA 1989); Rigol v. State, 561 So. 2d 1308 (Fla. 3d DCA 1990); Elsleger v. State, 503 So. 2d 1969 (Fla. 4th DCA 1988); Alvarez v. State, 515 So. 2d 286 (Fla. 4th DCA 1987); Horvath v. State, 524 So. 2d 741 (Fla. 4th DCA 1988); Nazario v. State, 535 So. 2d 295 (Fla. 4th DCA 1988); State v. Milmoe, 541 So. 2d 718 (Fla. 4th DCA 1989); Weaver v. State, 548 So. 2d 1198 (Fla. 4th DCA 1989); State v. Carr, 549 So. 2d 701 (Fla. 4th DCA 1989); State v. Haines, 543 So. 2d 1278 (Fla. 5th DCA 1989); State v. Angel, 547 So. 2d 1294 (Fla. 5th DCA 1989); West v. State, 588 So. 2d 248 (Fla. 4th DCA 1991); Reynolds v. State, 592 So. 2d 1082 (Fla. 1992); State v. Martin, 635 So. 2d 1036 (Fla.3d DCA 1994); State v. Paul, 638 So. 2d 537 (Fla. 5th DCA 1994); Barna v. State, 636 So. 2d 571 (Fla. 4th DCA 1994); Phuagnong v. State, 714 So. 2d 527 (Fla. 1st DCA 1998); State v. Sakezeles, 778 So. 2d 432 (Fla. 3d DCA 2001); Hilgeman v. State, 790 So. 2d 485 (Fla. 5th DCA 2001)..

(b)   Advising the defendant of the right to refuse consent has been held to vitiate the taint as a matter of law. State v. Gribeiro, 513 So. 2d 1323 (Fla. 3d DCA 1987); State v. Butler, 520 So. 2d 325 (Fla. 3d DCA 1988); Windes v. State, 547 So. 2d 346 (Fla. 3d DCA 1989); State v. Boyd, 615 So. 2d 786 (Fla. 2d DCA 1993). The Supreme Court has ruled, however, that where the defendant was handcuffed, the fact that he was told that he had a right to refuse to consent was not dispositive of the question of whether the consent was free and voluntary. Reynolds v. State, 592 So. 2d 1082 (Fla. 1992). Advising the defendant of his Miranda rights does not vitiate the effect of unlawful police conduct. Gonzalez v. State, 578 So. 2d 729 (Fla. 1991).   [Back]

(c)   "The taint may be dissipated when the defendant is advised of his constitutional right to refuse consent to search and nonetheless voluntarily does so." State v. Paul, 638 So. 2d 537 (Fla. 5th DCA 1994).

(d)   Officers detained the defendant in a house while they looked for a man who was the subject of a warrant. When they determined the man was not present they continued to detain the defendant and other occupants while they did other things, including searching for weapons and narcotics. During that period an officer got the defendant's consent to search his person. Drugs were found. On appeal the court ruled that the consent was not voluntary. This consent was given during an illegal detention; therefore, the state had to prove by clear and convincing evidence that there was an "'unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.'" The evidence was insufficient to meet that burden. There were two officers outside of the house to stop people and the officers inside were collecting identifications. A reasonable person would not have been inclined to terminate the encounter by leaving the premises. Deleon v. State, 700 So. 2d 718 (Fla. 2d DCA 1997).

(e)   [See facts below under "Motor Vehicles and Boats": "Duration of stop".] The defendant acquiesced to a search of his personal property because of illegal police conduct. "It was incumbent upon the State to show by clear and convincing evidence that any consent to search the bag, the shoe, or the matchbox was voluntary and not the product of appellant's illegally prolonged detention." There must be "'an unequivocal break between the stop and the consent.'" Cooper v. State, 654 So. 2d 229 (Fla. 1st DCA 1995).

(f)   "The State argues that the circumstances present below are not coercive enough to vitiate the defendant's consent. We disagree. The record facts indicate that several officers entered the apartment, chased the defendant into the bathroom, pulled him by his arm into the living room and thereupon read him his rights. The defendant's ‘consent’ at that point amounted to nothing more than mere acquiescence to authority. Analyzing the totality of the circumstances the defendant's actions did not constitute a valid consent." State v. Sakezeles, 778 So. 2d 432 (Fla. 3d DCA 2001).

(g)   "Because Officer Seltzer lacked a well-founded suspicion to justify the investigatory stop and detention of appellant, the evidence obtained as a result of the unlawful seizure should have been suppressed. (citations omitted) Here, appellant's consent to the search occurred almost immediately after the illegal detention. Thus, there was no break in the chain of illegality sufficient to dissipate the taint of the prior illegal police action to render the consent freely and voluntarily given. (citations omitted) We, therefore, reverse the trial court's denial of appellant's motion to suppress and remand this cause for further proceedings." Ippolito v. State, 789 So. 2d 423 (Fla. 4th DCA 2001).

(h)   "The voluntariness vel non of the defendant's consent to search is to be determined from the totality of circumstances. But when consent is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search. (citations omitted) The consent will be held voluntary only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action. (citations omitted).... The United States Supreme Court addressed an analogous situation in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In Brown, the defendant was illegally arrested and subsequently confessed. The question in the case was whether the giving of Miranda warnings prior to the confession broke the taint from the prior arrest. The Supreme Court provided the following list of factors to consider when determining whether the taint from previous police misconduct has been broken: ‘whether Miranda warnings have been given, the temporal proximity of the misconduct and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the misconduct.’ See id. at 603-04, 95 S.Ct. 2254. In the present case, the police obtained oral and written consents from Connor prior to searching the car, taking the shoes and socks, and searching the house. Connor was informed of his right to refuse the searches. Before being questioned, Connor was given Miranda warnings and he waived his rights in writing. Under these circumstances, even if the initial encounter was illegal, any taint from that encounter did not extend to the subsequent consents." Connor v. State, 803 So. 2d 598 (Fla. 2001).

4.  Did the person have authority to consent? Cook v. State, 531 So. 2d 1369 (Fla. 1st DCA 1988); Wassmer v. State; 565 So. 2d 856 (Fla. 2d DCA 1990); Rada v. State, 544 So. 2d 1112 (Fla. 3d DCA 1989); Rigol v. State, 561 So. 2d 1308 (Fla. 3d DCA 1990); State v. Walton, 565 So. 2d 381 (Fla. 5th DCA 1990).  [Back]

(a)   The Court adopted the higher standard of clear and convincing evidence in all cases where the state claims that consent to enter a home was given by a minor with joint control. Saavedra v. State, 622 So. 2d 952 (Fla. 1993).

(b)   The test for determining authority to consent is an objective one: "Would the facts available to [the officer], at the time of the search, warrant a person of reasonable caution to believe the consenting party ... had authority over the premises?" Morse v. State, 604 So. 2d 496 (Fla. 1st DCA 1992).

(c)   General rules applying to joint occupants.   [Back]

(1)   "'The test for a valid third-party consent to a warrantless search is whether the third party had joint control of the premises'...."

(2)   "[A] joint occupant or one sharing dominion and control over the premises may provide valid consent only if the party who is the target of the search is not present or if the party is present and does not object to the search."

Saavedra v. State, 622 So. 2d 952 (Fla. 1993).

(3)   Where one of two joint occupants objects, it is improper to search even though the other occupant called the police and consented to the search. Mitchell v. State, 558 So. 2d 72 (Fla. 2d DCA 1990).

(4)   The prohibition against entry without a warrant does not apply "where a third party with common authority over the premises gives voluntary consent to enter.... 'Common authority' arises from 'mutual use of the property by persons generally having joint access or control for most purposes.'" Morse v. State, 604 So. 2d 496 (Fla. 1st DCA 1992).

(5)   A third person who has common authority over the premises, or has a sufficient relationship to the premises or to the property and effects to be searched may consent. State v. Walton, 565 So. 2d 381 (Fla. 5th DCA 1990).

(6)   The wife consented to a search of the apartment she jointly occupied with her husband. In regard to the effect of an objection from one occupant: "'[t]hough a joint occupant should have authority to consent to a search of jointly held premises if the other party is unavailable, a present objecting party should not have his constitutional rights ignored because of ... a property interest shared with another. This is particularly true where the police are aware that the person objecting is the one whose constitutional rights are at stake." In this case the defendant was taken away from the apartment after his arrest without being asked whether or not he would consent to the search, but he was asked shortly after his arrest where he had put the contraband and made no response when informed that his wife had consented to a search of the apartment. Thus, the defendant was not present at the scene in order to make an objection, but he did not object later when given the opportunity to do so. Thus, the court found that the wife's consent was valid. State v. Martin, 635 So. 2d 1036 (Fla.3d DCA 1994).

(7)   A detective asked a motel manager about a motel room. The manager told him that a woman named Melissa Beatty had rented the room, but it was occupied by two men named Jose Roman and Eric Cooper. When the detective knocked on the door to the room, a teenage girl opened the door. It was not Melissa Beatty. The detective identified himself and asked if he could enter. The girl allowed him to do so. Inside, he saw items that matched descriptions of property taken in burglaries. The defendant was asleep on the bed. The detective and the girl woke him. The detective asked the defendant about the items he had seen in the room. The defendant then consented to a search of the room, which turned up other items belonging to the burglary victims. The trial judge denied a motion to suppress. On appeal the court focused on the issue of third party consent. "Consent to enter premises occupied by a suspect may be given either by the suspect himself or by a third party who possesses common authority over the premises." In this case the question was the validity of the consent by the teenage girl. She did not have actual authority over the premises. She was a friend of a friend of the occupants, and just happened to be present when the detective knocked. The state argued that the entry was proper under Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). There the court held, "that a warrantless entry is valid when based on the consent of a third party whom police, at the time of the entry, reasonably believe possesses common authority over the premises, but who in fact does not possess such authority." The court warned that the mere fact that a person consents is not sufficient to justify a belief that the person had authority to do so. In this case the court noted that the detective "never questioned the girl's authority to grant him entry, but instead felt that he had no reason to believe that she did not have that authority. He acknowledged that his belief that the girl had common authority over the room was based simply on the fact that she opened the door." He make no inquiry concerning her age or anything else. "The mere fact that an unknown person opens the door when a police officer knocks cannot, standing alone, support a reasonable belief that the person possesses authority to consent to the officer's entry." The court found that the officer did not exercise reasonable caution, but merely jumped to an unwarranted conclusion. "That conclusion was all the more unreasonable because the person from whom the detective sought permission to enter was a minor." In Saavedra v. State, 622 So. 2d 952 (Fla. 1993), the Court adopted the Matlock common authority test. The Court held that it was possible for a minor to possess such authority. In Saavedra the Court said in applying that test to minors and determining the reasonableness of the officer's belief that the minor had joint authority "‘the courts should consider the minor's age, maturity, and intelligence. The courts should also consider any other facts which might show that a police officer reasonably believed that a minor shared joint authority over the home, such as whether the minor had permission to allow entry into the home, whether the minor had a key to the home, and whether the minor shared common household duties with the parent.’... Thus, even when the police are aware of a minor's identity and know that he is an occupant of the home, the very fact that he is a minor calls for further inquiry before the police may reasonably believe that he possesses authority to grant them entry." The state also argued in this case that the detective could reasonably have believed that the girl was Melissa Beatty, the woman who had rented the room. Since the detective never suggested this, the court refused to consider such a belief as a basis for entry. Furthermore, the court took the opportunity to reiterate the principles on actual authority. The court concluded that the record did not establish that Beatty had actual authority over the premises. The room was registered in her name, but the evidence showed that she had rented it for the two men because they did not have proper identification. They paid for the room and were its only occupants. Beatty didn't even have a key. The court relied on this language from U.S. v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974), "‘[c]ommon authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.’" Cooper v. State, 706 So. 2d 369 (Fla. 2d DCA 1998).

(8)   Officers had received complaints about drug sales at a certain motel room, they went to the room to talk to the occupant. When the officers arrived they were allowed into the room by "an unidentified woman with no known connection to the motel room other than her act of opening the door." Upon entry, the officers observed the defendant attempting to swallow contraband. The officers seized the evidence. The trial judge denied the defendant’s motion to suppress on the grounds that the woman had no actual or apparent authority. On appeal, the court reversed. "A warrantless entry is valid when based on the consent of a third party whom police, at the time of entry, reasonably believe possesses common authority over the premises, but who in fact does not possess such authority. Id. at 186, 110 S.Ct. 2793. But Rodriguez cautioned that mere consent to an officer's entry is not, standing alone, sufficient to justify the officer's belief that the person giving consent has the authority to do so." The test is whether the facts known to the officer would cause a person of reasonable caution to believe that the consenting party had authority to permit entry onto the premises. "‘If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.’" Rodriguez, 497 U.S. at 188-89, 110 S.Ct. 2793 (citations omitted). This determination must be based on the facts known to the officer at the time and not on what the officer later learns. "‘Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of these co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.’ Id. at 171 n. 7, 94 S.Ct. 988 (citations omitted). ‘The mere fact that an unknown person opens the door when a police officer knocks, cannot alone, support a reasonable belief that the person possesses authority to consent to the officer's entry.’ Cooper v. State, 706 So.2d 369, 371-72 (Fla. 2d DCA 1998). Otherwise, the third party consent exception to the warrant requirement would consume the requirement.... Here, the police, based on nothing more than an unidentified woman with no known connection to the motel room other than her act of opening the door, concluded that she had the actual or apparent authority to consent to such entry. We find that conclusion to be unsupported by the facts then known to the police officers." Williams v. State, 788 So. 2d 334 (Fla. 5th DCA 2001).

(9)   The State argued that even though the defendant’s consent may be invalid, that the fact that the co-resident arrived during the search and consented, was sufficient. On appeal, the court agreed with this position of the trial judge: "‘Given the initial and continuing police illegality, the consent of the co- resident [apartment owner] to the search must also be proven to be free and voluntary by clear and convincing evidence. [The owner] in arriving at his home was confronted with a fait accompli. The defendant signed his consent a half-hour before the co-resident got there. The search was already well underway. Just as you cannot un-ring a bell, you cannot un-search a home that has already been searched. There is insufficient evidence that [the owner's] consent was anything but giving in to the inevitable.’" State v. Sakezeles, 778 So. 2d 432 (Fla. 3d DCA 2001).

(10)   "Ishmael ... argues that the trial court erred in denying his motion to suppress physical evidence seized from the residence at which he was staying at the time of his arrest. Ishmael jointly occupied a single-family residence with Beatrice Allen and her sons, and, after Ishmael’s arrest, police obtained Allen’s verbal and written consent to conduct a search of the residence. We find no basis to disturb the trial court’s finding that the consent to search was valid under United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)(authority to consent to a search arises from the mutual use of the property by persons generally having joint access, common authority over, or other sufficient relationship to the premises or effects to be inspected). In addition, we agree with the trial court that it was reasonable for police to rely on Allen’s consent, because she had the apparent authority to consent. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Ishmael’s argument that police were required to seek consent from Ishmael, who was in police custody at the time the search was undertaken, before police could rely upon the consent of a third party, has repeatedly been rejected." Ishmael v. State, 803 So. 2d 910 (Fla. 1st DCA 2002).

(11)   "The United States Supreme Court has recognized the validity of searches based upon the consent of a third party with apparent authority to consent. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court held that a third party who has joint access or control of a premises may provide a valid and binding consent to search the property in the absence of the nonconsenting person. Subsequently, the Supreme Court extended the validity of third-party consent in Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), and held that a search is constitutional if based upon the consent of a third party when an officer has a reasonable basis to believe that the consenting person has common authority over the premises. The burden is on the State to establish common authority or apparent authority to consent to the search. Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793. See also Saavedra v. State, 622 So.2d 952 (Fla.1993) (adopting the common authority test set out in Matlock to determine validity of third-party consent).... The only Florida case discussing the validity of a third-party consent to a search under somewhat similar circumstances is State v. Walton, 565 So.2d 381 (Fla. 5th DCA 1990). In Walton, the Fifth District held that a driver's consent to search an automobile, and specifically the contents of the trunk, extended to a suitcase located in the trunk over which the passenger and driver had common authority, even when the suitcase ultimately belonged to the passenger. In Walton, however, the officer conducting the search had no indication to whom the suitcase belonged, given its location and nature. In this case, Ms. Brown's zippered fanny pack rested on her lap when the officer first saw it, indicating that this personal item, not generally shared between two persons, was not something that the driver could give a consent to search. Furthermore, this court has questioned whether an officer may rely upon a third party's consent to search when the owner of the item is present and available to consent. State v. Miyasato, No. 2D00-936, 26 Fla. L. Weekly D698, --- So.2d ----, 2001 WL 220012 (Fla. 2d DCA Mar.7, 2001). See also Pinyan v. State, 523 So.2d 718, 721 (Fla. 1st DCA 1988) (holding that joint occupant may provide valid consent only if other party is not present). Given the lack of precedent in Florida, we are persuaded by cases in other jurisdictions that have held that a driver lacks the apparent authority to consent to a search of a passenger's purse.... [A]lthough Ms. Brown and the driver may have exercised shared use and joint access and control over the car in which they were stopped, this ‘shared use’ could not apply to the fanny pack in Ms. Brown's lap. The fanny pack, like a purse, is a container suggesting individual ownership, in which a person has a significant expectation of privacy.... The officer here never saw the pack in the driver's possession, and knew that Ms. Brown was in possession of it until he ordered her out of the car. Under these circumstances, it was not reasonable for the officer to assume that the male driver had the apparent authority to consent to the search of the pack." Brown v. State, 789 So. 2d 1021 (Fla. 2d DCA 2001).

(d)   Consent by minors. The state must show:  [Back]

(1)   "The minor shares the home with an absent, nonconsenting parent."

(2)   "The police officer conducting the entry into the home reasonably believes, based on articulable facts, that the minor shares common authority with the parent to allow entry into the home."

(3)   "By clear and convincing evidence the minor's consent was freely and voluntarily given under the circumstances."

(4)   In making that decision the trial judge should consider: "the minor's age, maturity, and intelligence" and other facts showing the reasonableness of the officer's belief such as "whether the minor had permission to allow entry into the home, whether the minor had a key to the home, and whether the minor shared common household duties with the parent." The officer must conduct inquiry to determine such facts.

Saavedra v. State, 622 So. 2d 952 (Fla. 1993).See also Cooper v. State, 706 So. 2d 369 (Fla. 2d DCA 1998)[discussed above].

(e)   Types of relationships.  [Back]

(1)   Mother of 18 year old child. Could consent to a search of his room where she had access to his room, he submitted to her rules in the apartment, she paid the living expenses, and he was required to leave his bedroom door open when his mother directed. State v. Brown, 558 So. 2d 1054 (Fla. 2d DCA 1990).

(2)   Driver of a vehicle. He had control of the vehicle, including the keys to the trunk. He had authority to consent to a search of the entire vehicle and all items found therein, including the luggage of the passenger, unless the passenger objected to the search of his property. State v. Walton, 565 So. 2d 381 (Fla. 5th DCA 1990).

(3)   "A motel manager has no power by consent or invitation to waive a guest's privacy rights. [Citations omitted] nor does a motel security guard have the power to do so by forcing open the door of a guest who refuses to open it." Wassmer v. State, 565 So. 2d 856 (Fla. 2d DCA 1990). See also Dempsey v. State, 717 So. 2d 1071 (Fla. 1st DCA 1998)[same ruling as to hotel manager].

(4)   Provisions of a rental agreement giving a landlord the right to enter premises for inspection purposes and to spray for insects do not give the landlord the right to invite the police onto the premises. Even though the tenant is behind on rent the tenancy can only be terminated by written notice, abandonment, or surrender. Abandonment is present only where there is "a clear indication that the tenant voluntarily left with no intention of returning." The Court gave examples: (1) defendant completely packed and took his property, vacated the room, paid the bill and apparently checked out, leaving behind evidence in the trash; (2) defendant hurriedly left town on what was obviously a one-way trip; (3) the defendant left behind no personal belongings or other items of value and garbage and decayed food was present. On the other hand there was no abandonment where the defendant was told the police had been called and ran from the room with a foot locker and went into a nearby house, but left his motorcycle outside the room and his jacket and helmet inside. In this case the defendant had left some of his belongings in the room. The Court found no intent on the defendant's part "to relinquish his control over the room prior to removing his personal items such as clothing and furnishing." The defendant was told that he had 30 minutes to pack and leave. He thought he had no alternative and left behind some items with the intent to come back for them. Officers are not entitled to rely on a manager's invitation unless the defendant has given up his or her expectation of privacy. Even if the manager has a right to enter the premises to investigate a potential crime, he has no right to allow police officers to enter. Under such circumstances the officer is required to make further inquiry since there is no actual authority and the officer is presumed to know the law. In this case at the very best the officer was faced with an ambiguity which should have stopped him from entering the room without further inquiry. The officer was apparently also operating under a mistake of law - that the defendant could be evicted with 30 minutes oral notice. There was nothing in the record that indicates that the officer's reliance on his view of the facts and the law was objectively reasonable. Morse v. State, 604 So. 2d 496 (Fla. 1st DCA 1992).

(5)   Hospital patient. The defendant was hospitalized as a result of an auto accident. Another man had disappeared and a officer had reason to believe that the defendant might have been involved in doing bodily harm to this man. The officer went to the hospital room to talk with the defendant. Prior to entering the room the officer learned that the defendant's clothing had been placed in a bag that was in his room. The officer decided that the clothing should be seized because it might assist in locating the missing man. The officer was concerned that the clothing might disappear through the deliberate act of the defendant or the inadvertent act of hospital personnel. On the way out of the room, the officer looked into an unsealed bag in the corner of the room and confirmed that it contained the clothing. Officers then seized the bag, which, through testing, was determined to contain incriminating evidence. Money and some lottery tickets were also seized from hospital security. It was determined that the missing man had a large amount of money when he was seen with the defendant and the defendant did not and lottery tickets had been removed from the missing man's truck. These seizures were without a warrant. A motion to suppress was denied. On appeal the Court found that the denial of the motion was error. The Court held that the seizure of the money and lottery tickets from hospital security could not be upheld based on consent. "[T]he hospital was holding [the defendant's] effects as bailee of his property. As such, hospital personnel had no authority to release [the defendant's] money or lottery tickets to third persons, absent either authorization from [the defendant] or a valid warrant." As to the clothing the Court held that the hospital could not consent to the search or seizure even though the staff had joint access to and control over the property, because they had "no right to mutual use of a patient's belongings." Jones v. State, 648 So. 2d 669 (Fla. 1994)

(6)   Members of the board of directors of a corporation suspected the person who was the founder, member of the board and managing director, of criminal activity. They convened a meeting without notice to the suspect director and voted unanimously to consent to a search and seizure. The defendant (i.e. the suspect director) moved to suppress on the grounds that the board did not have the authority to consent to a search of her office or seizure of documents. The trial court granted the motion. On appeal the Court reversed. The test for determining whether there is valid consent was an objective one: "‘would the facts available to the officer at the moment ... "warrant a man of reasonable caution in the belief" that the consenting party had authority over the premises?’" In this case the Court concluded that the answer was yes. The board members acknowledged that they would have asked the managing director before gaining access to the records or documents and she was the custodian of the records. The board members also stated, however, that they had the ability to inspect that material whenever they wanted. At the time they voted they thought they had the authority to consent to a search and seizure. "[T]he board had apparent authority to consent to the search of the corporate offices and to the seizure of the corporate records and the police reasonably relied upon such apparent authority." State v. Justice, 624 So. 2d 402 (Fla. 5th DCA 1993).

(7)   The defendant's grandmother consented to a search of his room in her apartment. The defendant was in custody and available to consent, but he was not at the apartment when the police secured the consent from the grandmother. The grandmother rented the apartment. She was responsible for doing the defendant's laundry and picking up his room. Under these circumstances the grandmother's consent was sufficient. This conclusion was supported by Preston v. State, 444 So. 2d 939 (Fla. 1984), sentence vacated on other grounds, 564 So. 2d 120 (Fla. 1990). There the defendant's mother consented to a search of his room in her house. The mother had access to the room and was responsible for cleaning it. The mother had the authority to consent. The court emphasized the fact that the defendant in this case was absent. In Silva v. State, 344 So.2d 559 (Fla. 1977), the court found that the wife's consent was insufficient because the defendant was present and objected. Leonard v. State, 659 So. 2d 1210 (Fla. 4th DCA 1995).

5.  Was the consent voluntary? State v. Hall, 537 So. 2d 171 (Fla. 1st DCA 1989); Moreland v. State, 552 So. 2d 937 (Fla. 2d DCA 1989); B.S v. State, 548 So. 2d 838 (Fla. 3d DCA 1989); Henderson v. State, 535 So. 2d 659 (Fla. 3d DCA 1988); State v. Diaz, 549 So. 2d 759 (Fla. 3d DCA 1989); State v. Jerome, 541 So. 2d 756 (Fla. 4th DCA 1989); State v. Jones, 537 So. 2d 153 (Fla. 4th DCA 1989).  [Back]

(a)   The defendant may withdraw consent, and once the officer restarts the search silence cannot be construed as consent. State v. Hammond, 557 So. 2d 179 (Fla. 3d DCA 1990).

(b)   Voluntary consent may be withdrawn. In this case consent to search a vehicle was withdrawn when the defendant grabbed items from an officer and drove away. Peterson v. State, 649 So. 2d 326 (Fla. 1st DCA 1995).See also Phillips v. State, 707 So. 2d 774 (Fla. 2d DCA 1998).

(c)   Even though the defendant did not read a consent form she signed, the consent was still voluntary because the evidence indicated that it was freely and voluntary given. State v. Brown, 558 So. 2d 1054 (Fla. 2d DCA 1990).

(d)   There is no requirement the person be advised of the right to refuse. State v. Brown, 558 So. 2d 1054 (Fla. 2d DCA 1990).

(e)   A person's consent can be held to be voluntary if given while he is handcuffed during a temporary detention, but it will be more difficult for the state to meet its burden. Reynolds v. State, 592 So. 2d 1082 (Fla. 1992).

(f)   Where the defendant only consented to a search behind his shed after an officer went to conduct the illegal search, his alleged consent was presumptively involuntary. That presumption was not eliminated where the defendant was not free to go and he was in at least de facto custody. In such a coercive setting combined with the knowledge that an illegal search was about to be done the defendant's alleged consent at best rose "to the level of acquiescence to authority." West v. State, 588 So. 2d 248 (Fla. 4th DCA 1991) [reversed on other grounds].

(g)   Officers approached the defendant in an airport. They identified themselves and asked the defendant if she would speak with them and then asked her for identification and her tickets. The defendant produced them. After returning the tickets and identification, one of the officers asked if they could search her baggage and her person and advised her of the right to refuse. She agreed to the search. While searching a suitcase a female officer noticed an object protruding from underneath the defendant's skirt and asked the defendant if she would prefer to step around the corner for the pat down. The defendant said she would prefer to do so and they went into the alcove of a ladies' rest room. The officer then placed her hand on the package between the defendant's legs. It was taped to the defendant's thigh, about two or three inches below her crotch. The officer believed it was cocaine and arrested the defendant. The defendant moved to suppress the object on the grounds that the consent was not voluntary. The trial judge found the consent voluntary. On appeal the Court affirmed. Davis v. State, 594 So. 2d 264 (Fla. 1992).

(h)   Based on the decision of the United States Supreme Court in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), reversing a decision of the Florida Supreme Court holding that the consent of a passenger on a bus confronted by officers was not voluntary, the Court remanded this case and in other decisions did the same to conform to the decision of the United States Supreme Court. Bostick v. State, 593 So. 2d 494 (Fla. 1992).

(i)   Officers knocked on the defendant's motel room and announced themselves. The defendant voluntarily opened the door and identified himself. "Although Turner did not invite the officers into the room, he walked into the room and left the door ajar. This allowed the officers to enter the room because there was no deception or evidence of forced entry. See Byrd v. State, 481 So. 2d 468, 472 (Fla. 1985) ('[A]n entry under those circumstances is consensual, at least with respect to the area immediately surrounding the threshold or vestibule entrance of the residence, particularly where the defendant makes no objection.')" Turner v. State, 645 So. 2d 444 (Fla. 1994).

(j)   The evidence established that the defendant freely and voluntarily consented to giving hair and blood samples. The defendant was read his rights, stated that he understood and orally waived them, and freely and voluntarily provided the samples. Washington v. State, 653 So. 2d 362 (Fla. 1994).

(k)   The defendant was in a train sleeping compartment, which was a small room with a door. At about 11:00 p.m. officers knocked on the door. There were three of them. When the defendant answered the door, one officer identified himself, asked for identification and requested consent to search the compartment and her luggage. The officers did not exhibit any weapons nor did they indicate that they would arrest the defendant or get a search warrant if she did not consent. She consented to the search and drugs were found in bags rolled up in a pair of socks. A motion to suppress was denied. The Court relied on Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed.2d 389 (1991). In that case, the Court found that a bus passenger may legally consent to a search despite the cramped facility. "'[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all of the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's request or otherwise terminate the encounter.' (Emphasis added.)" The court also pointed out that in Bostick the Court said that, "'the "reasonable person" test presupposes an innocent person.'" The evidence in this case supported the trial judge's conclusion that the defendant voluntarily consented. Hosey v. State, 627 So. 2d 1289 (Fla. 5th DCA 1993).

(l)   The trial judge found that the defendant did not consent to a search of his vehicle because the officer had his license and registration, which met he could not leave. On appeal the court reversed. The court found that there was clear and convincing evidence of the voluntariness of consent. The court relied on the following factors: (1)the initial stop was lawful; (2) only one officer approached; (3) the officer's weapon was not drawn; (4) the officer advised the defendant he had the right to refuse to consent; and (5) the officer made no threats or misrepresentations. State v. C.S., 632 So. 2d 675 (Fla. 2d DCA 1994).

(m)   The fact that no probable cause existed for a warrantless arrest of defendant outside of his home was irrelevant to a subsequent consent of defendant's wife to search the home, as the subsequent consent was voluntary and knowledgeable and thus dissipated any illegality stemming from the warrantless arrest. State v. Martin, 635 So. 2d 1036 (Fla.3d DCA 1994).

(n)   The officer "told the appellant that he was going to pat him down. And although at one point, the officer said to the appellant, 'If you have a problem with that you need to let me know,' the officer did not give the appellant an opportunity to respond. In fact, he cut the appellant off as the appellant was saying, 'No, I don't have no weapons, but I don't understand ---.'" This was not consent to search. Stalling v. State, 678 So. 2d 843 (Fla. 1st DCA 1996).

(o)   "The law is ... well settled that a nonconsensual police entry into private premises to effect an arrest therein is unlawful if, subject to certain exceptions, the police fail to announce their authority and purpose prior to entering the premises." An entry is consensual where undercover officers are permitted into the premises. The fact that they used deception or trick to gain entry does not change that result. When the undercover officers leave purportedly for the purpose of doing something in connection with the drug deal and they send in other officers to make the arrest, the other officers need not announce their presents and authority before entry. They have implied consent even though the undercover officers do not return with them. Fidalgo v. State, 659 So. 2d 290 (Fla. 3d DCA 1994).

(p)   The trial judge found that officers lawfully entered the involved apartment because "even assuming that there were no words spoken inviting the police officers in the house, ... the actions and reactions of Mr. Joy would have indicated it would have been reasonable for the police officers to assume they were being invited into the house at that point in order to see whatever medication Mr. Joy was on at that time." On appeal the court reversed. The court noted that the deputy was already inside the house before there was any mention of the medicine that Mr. Joy was taking. The court explains that consent cannot be implied. "A positive response to a request to talk does not constitute consent to enter a citizen’s home." It cannot be inferred from the failure to object to entry into the home. Phuagnong v. State, 714 So. 2d 527 (Fla. 1st DCA 1998).

(q)   In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Court held that officers were not required to tell the defendant that he or she had a right to refuse to consent to a search in order for it to be voluntary. Based on the reasoning in that case, the Court held that officers who made a traffic stop were not required to advise the defendant that he or she was free to go before questioning them, in order for their consent to be ruled voluntary. Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

(r)   An officer completed a traffic stop and asked the defendant for permission to search the vehicle. The defendant consented and the officer discovered evidence. The trial judge granted a motion to suppress. The defendant argued that the consent was invalid because the purpose of the traffic stop had concluded. On appeal, the court ruled that there was no reason that the officer could not ask for consent to search after the purpose of the traffic stop was accomplished if they were in a citizen encounter. It was important that the defendant here existed the vehicle before the citation was issued and the request for consent was made. Thus, the contact was still in the consensual encounter mode and the consent was valid. See also State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001)

(s)   The court found that the trial judge properly concluded that the defendant had voluntarily consented to a search of his person. An officer saw the defendant with three other people. Two of them walked away. One officer walked up to the defendant. The officer talked about the guys who had left and asked him if he had any narcotics. The defendant said that he did not. The officer then asked if the defendant minded if the officer took a look in the defendant's pocket. The defendant said no, as in "no I don't mind." Butler v. State, 706 So. 2d 100 (Fla. 1st DCA 1998).

(t)   Officers unlawfully entered a house and searched a bedroom. They then secured a written consent to a second search of the bedroom. On appeal the court ruled that the search could not be upheld based on the written consent. The initial illegal entry tainted the subsequent consent and the State had the burden of producing clear and convincing evidence that the consent was independent of the illegal police activity. The State failed to meet this burden. Phuagnong v. State, 714 So. 2d 527 (Fla. 1st DCA 1998).

(u)   The State argued that even though the defendant’s consent may be invalid, that the fact that the co-resident arrived during the search and consented, was sufficient. On appeal, the court agreed with this position of the trial judge: "‘Given the initial and continuing police illegality, the consent of the co- resident [apartment owner] to the search must also be proven to be free and voluntary by clear and convincing evidence. [The owner] in arriving at his home was confronted with a fait accompli. The defendant signed his consent a half-hour before the co-resident got there. The search was already well underway. Just as you cannot un-ring a bell, you cannot un-search a home that has already been searched. There is insufficient evidence that [the owner's] consent was anything but giving in to the inevitable.’" State v. Sakezeles, 778 So. 2d 432 (Fla. 3d DCA 2001).

6.  Was the search within the scope of the consent?   [Back]

(a)   Includes those closed containers that it is objectively reasonable for the officer to believe are within the scope of the consent. These would include containers a reasonable person would know might contain the object of the officers search. The Court did not apply this to locked containers. Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

(b)   Pursuant to Jimeno general consent to search a car includes consent to search a closed brown paper bag within the car. State v. Jimeno, 588 So. 2d 233 (Fla. 1991). See also State v. Hester, 618 So. 2d 1365 (Fla. 1993).

(c)   "'The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness. What would the typical reasonable person have understood by the exchange between the officer and the suspect?' Further, the scope of the consent must be determined in light of the consenting person's expectation of privacy. State v. Wells, 539 So. 2d 467." Davis v. State, 594 So. 2d 264 (Fla. 1992).

(d)   A female defendant consented to have a female officer search an object protruding from underneath the defendant's skirt. It was about two or three inches below her crotch. The search did not extend to an impermissible area because there was no contact with the crotch or groin area. In reaching this conclusion the court ruled that a search of the crotch or groin area would not be expected by a reasonable person to be included in a general consent to search the person and requires "a specific consent to search an individual's crotch or groin area." This decision involves the specific application of the decision in Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Davis v. State, 594 So. 2d 264 (Fla. 1992).

(e)   An officer stopped the defendant's car on an interstate for having a broken license tag light. There were three people in the car. While the record supported the finding that the three defendants each consented to a search of their persons, it was unnecessary for the court to reach that issue. During the pat down of the first defendant the officer felt a hard object slightly below the rear of the defendant's pants. He told the first defendant to remove his pants and underwear and he complied. Drugs were found in the underwear. An officer patted down the second defendant in the crotch area and felt a hard object. He had the second defendant undo his pants. The second defendant pulled down his pants to mid-thigh. The officer seized drugs from his underwear. An officer asked the third defendant to undo his pants. He partially pulled down his pants. Drugs were found in his underwear. There was no evidence that any of the defendant's specifically consented to a search of their genital areas. This all took place on the side on an interstate highway. The officers did not offer the defendants any cover from passersby, male or female officers at the scene or from each other. "The police effectively conducted strip searches in open view in a public place on the side of the roadway of Interstate 95." On appeal the denial of motions to suppress was reversed. "We believe, under the totality of the circumstances in this case, appellants as reasonable persons would not have understood their consent to patdown searches would encompass strip searches in open view on the side of the roadway of an interstate highway." Johnson v. State, 613 So. 2d 554 (Fla. 4th DCA 1993).

(f)   An uncover agent entered the defendant's home with an informant for the purpose of making a cocaine purchase. The agent was instructed to sit on the couch in the living room while the informant was given permission to go to a bedroom. Since the door to the room was closed the agent could not see or hear what was going on in the room. Without permission or consent the agent left the living room couch and followed the female down the hall to the bedroom. When the agent reached the end of the hall, the bedroom door was partly open and he could see contraband on the floor. The agent pushed the door completely open and saw two bags of powder between the defendant and the informant. He seized the bag. A motion to suppress was denied. The state argued that there was consent. On appeal the Court ruled that the permission to enter the house was not a blanket consent to go anywhere in the house. It was not reasonable for the agent to believe that he had consent to go down the hall since he had specifically been told to stay on the couch. Soldo v. State, 583 So. 2d 1080 (Fla. 3d DCA 1991).

(g)   Where the defendant consented to a search of his vehicle that included a search of both the interior and the exterior. This was true even though the officer had asked whether the occupants were carrying contraband inside of the vehicle. He asked to search the vehicle. State v. Jones, 592 So. 2d 363 (Fla. 5th DCA 1992).

(h)   Where the defendant had consented to the entry of an undercover officer for a drug transaction, the consent included consent to reentry of that officer and backup officers when the undercover officer left the house allegedly for the purpose of getting the money for the transaction and returning. State v. Lopez, 590 So. 2d 1045 (Fla. 3d DCA 1991).

(i)   The defendant consented to officers searching the premises for another individual. The officers walked-through the house and found nothing. One of the officers went back to the defendant's bedroom and discovered evidence of a crime. The defendant argued that the consent terminated when the officers completed their initial walk-through the house. On appeal the Court disagreed. "The question is whether, viewed from an objective standpoint, the officers should have understood that they were privileged to conduct only a single cursory search for [the other individual].... We do not believe they were so limited, absent an express limitation to this effect imposed by [the defendant]." This conclusion was supported by (1) the fact that the officers never left the premises, (2) there was no significant delay between the two searches, and (3) both searches were made for the same purpose. Fahie v. State, 603 So. 2d 91 (Fla. 5th DCA 1992).

(j)   Officers exceeded the scope of consent to search an apartment for narcotics where they brought a narcotics detecting dog into the apartment without seeking consent and then proceeded to dismantle the sink and break into a wall. The dog had not been openly present with the officers when they secured the consent. It was proper for the officers to search the apartment in areas where narcotics might reasonably be found, but the other acts were not objectively reasonable. "Under an objective standard, a generalized consent to a search does not allow the officers to 'engage in search activity which involves the destruction of property....'" Dominguez v. State, 616 So. 2d 506 (Fla. 3d DCA 1993).

(k)   Officers were concerned with whether the defendant had put something under the seat of the car when they asked for consent to search. The defendant's wallet was on the seat of the car. The officer's searched it and found evidence. The trial judge granted a motion to suppress. The defendant testified that despite his consent to search the car, he did not believe he was agreeing to permit a search of his wallet because that was "'his personal belonging.'" The trial judge obviously found this testimony credible. The trial judge applied the standard of objective reasonableness established in Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), which is "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" On appeal the Court noted that the trial judge's findings were clothed in the presumption of correctness and they were not clearly erroneous. State v. Smith, 632 So. 2d 1086 (Fla. 5th DCA 1994) (en banc).

(l)   Scope of voluntary consent to a search was not exceeded by officers who opened a jewelry bag located in bedroom closet, when officers obtained consent from defendant's wife to search the apartment for the purpose of finding property stolen in a home invasion robbery. Officer's told the defendant's wife she could refuse to allow or terminate the search and limit or withdraw consent at any time. Moreover, the jewelry bag was within the scope of the area authorized to be searched. It was reasonably capable of containing the property, and defendant's wife was physically present during the search of the bedroom closet. Statement by defendant's wife that she "hadn't seen" the jewelry bag did not invalidate the consent to search it. The jewelry met the test set forth in Jimeno of "what would an ordinary reasonable person understand to be the scope of consent between the officer and the consenting party." "In conducting the reasonableness inquiry, the court must consider what the parties knew to be the object of the search at the time." State v. Martin, 635 So. 2d 1036 (Fla. 3d DCA 1994).

(m)   "The search of defendant's pockets exceeded the scope of either a pat-down for protection or the consent the officer had received to search the truck." Peterson v. State, 649 So. 2d 326 (Fla. 1st DCA 1995).

(n)   The defendant voluntarily consented to the search of her car. Officers used a narcotics detection dog to search the car. The defendant did not expressly consent to the use of the dog. The trial judge granted a motion to suppress. There was a barking dog at the scene. "The stated facts, however, imply that the judge accepted her testimony that she did not see any dog after she was stopped by the officer and did not know that one was present when she consented to the search." Thus, the trial judge concluded there was no implied consent. The factual finding was within the judge's discretion and the court upheld the decision on appeal. State v. McLeod, 664 So. 2d 983 (Fla. 4th DCA 1995).

(o)   The defendant consented to a search of a vehicle. It was not made involuntary by the fact that the officers called for a canine unit. That was not the same as saying that the officers were going to search the vehicle even if the defendant refused. It is implicit that if the dog did not alert, the officers would not search. Chambers v. State, 700 So. 2d 68 (Fla. 5th DCA 1997).

(p)   After doing a lawful pat down, the officer thought that the object creating a bulge was a cigar tube. The officer asked the defendant if he could see the object. The defendant gave it to him and the officer opened. He found drugs in the tube. On appeal the court found that if there was consent to giving the tube to the officer, it did not authorize the officer to open the tube. "Here, all the officer asked was to ‘see’ the tube. He gave no indication that he wanted to open it, and in fact testified he had never before found a weapon in a cigar tube, only cigars or drugs." R.R. v. State, 715 So. 2d 1062 (Fla. 5th DCA 1998).

(q)   Officers lawfully stopped a vehicle in which the defendant was a passenger. "During the stop, a police officer observed Ms. Brown sitting in the passenger seat with a fanny pack in her lap. The officer asked the driver if he could search the vehicle for narcotics, and the driver agreed. The officer instructed the driver and Ms. Brown to get out of the car so that he could search it. As she left the car, Ms. Brown placed the fanny pack on the floorboard in front of the passenger seat. Although he knew the fanny pack had been in her possession, the officer did not ask Ms. Brown for her consent to search the pack. As part of the search, however, the officer opened the fanny pack and found the illegal drugs inside. Ms. Brown moved to suppress the evidence discovered in the fanny pack.... The State ... argued that the driver's consent to search the vehicle for narcotics extended to the fanny pack." The trial judge denied the motion. On appeal, the court reversed. "[T]he driver did not have actual authority to authorize the search. The search was valid only if the driver had the apparent authority to consent to the search of the fanny pack, either through the driver and passenger's shared use or joint access to the fanny pack or because the circumstances gave rise to a reasonable belief that the driver had authority to consent to the search of the pack. Thus, the narrow issue presented is whether an officer has a reasonable basis to conclude that a driver's consent to search a car includes a search inside a passenger's purse or fanny pack if the passenger leaves the item in the car when ordered by the police to get our of the car. We hold that the officer must inquire of the passenger before searching inside such a purse or fanny pack." Brown v. State, 789 So. 2d 1021 (Fla. 2d DCA 2001).

(r)   An officer lawfully detained the defendant regarding a stolen drug that he was next to. The defendant voluntarily consented to a pat-down and voluntarily handed keys that were in his pocket to the officer, when the officer asked about them. The officer did not return them to the defendant, but placed them on the trunk of the police car and subsequently handed them to another deputy. As a result the victim determined that the keys belonged to the stolen trunk. On appeal, the court found that the keys should have been suppressed. "[W]e find that the deputy’s act of placing the keys on the trunk of the police car and giving them to another deputy exceeded the scope of M.E.S.’s consent in handing the keys to the deputy. The record reflects that M.E.S. neither authorized the deputy to place the keys on the trunk of the police car nor authorized him to hand them to another deputy. Section 901.151 ‘neither contemplates nor approves the seizure of goods without probable cause.’" M.E.S. v. State, 804 So.2d 537 (Fla. 2d DCA 2002).

E.  Was the evidence secured as a result of abandonment?  [Back]

1.  Voluntary abandonment.   [Back]

a.   In order for evidence to be introduced based on abandonment, the abandonment must be voluntary. No seizure takes place where the defendant voluntarily leaves property in an area where he has no reasonable expectation of privacy.

b.   The defendant was observed by officers placing an object under the wheel of a car. Officers seized it and found that it was a cigarette pouch containing drugs. The trial judge granted a motion to suppress based on his conclusion that it had not been abandoned. On appeal the court found that this was error. The court recognized that the main issue in such cases is intent, "'to be inferred from the words and actions of the parties and other circumstances surrounding the purported abandonment.'" However, the court concluded that the concept of abandonment for property purposes differs from the concept as it relates to search and seizure principles. The court adopted the position expressed in City of St. Paul v. Vaughn, 306 Minn 337, 237 N.W.2d 365 (1975). "'In the law of property, the question ... is whether the owner has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully assert his superior interest.... In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment.... In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein. Where the presence of the police is lawful and the discard occurs in a public place where the defendant cannot reasonably have any continued expectancy of privacy in the discarded property, the property will be deemed abandoned for purpose of search and seizure.'" Thus, based on these principles, the property in this case was abandoned. State v. Kennon, 652 So. 2d 396 (Fla. 2d DCA 1995).

c.   "While we have located no cases directly on point, the case law suggests that, after an initial abandonment of property, a defendant may 'repossess' the property by words or conduct." The court found that in this case there may have been such an event. The defendant had initially denied ownership of the involved suitcase. The officers opened it and found a picture of him inside. The defendant then admitted ownership, but without obtaining consent the officer continued with the search. If this was in fact a repossession the search was illegal. State v. Pratt, 591 So. 2d 272 (Fla. 4th DCA 1992).

d.   While officers were searching the occupants of a car, the defendant got out of a nearby truck and left without saying anything to the officers. He left the truck unlocked and illegally parked. Neither the car or the truck had a decal, which was required for parking in that area. The officers ran a check and found nothing indicating that the truck was stolen. They waited 45 minutes. No one returned to the vehicle. They entered the truck to search for identification or registration. During that search the officers found a balled-up paper bag, opened it and discovered cocaine. The officers also found a duffel bag containing a very large sum of money. The trial judge granted a motion to suppress. On appeal the Court reversed. "The officer's search of the truck was permissible because [the defendant] voluntarily abandoned the truck, which was illegally parked.... Under these circumstances it was permissible for the officer to investigate the ownership of the car. Because the defendant abandoned the car, the officer had the right to conduct a search of the car and seize any illegal substance whether it was in plain view or not." State v. Wynn, 623 So. 2d 848 (Fla. 2d DCA 1993).

2.  Dropping item before being captured or submitting to unlawful detention.  [Back]

a.   Where the defendant drops an item while he is being chased without good cause the abandonment does not result from an illegal detention because no detention takes place until the officer actually catches the defendant. California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Butler v. State, 579 So. 2d 890 (Fla. 3d DCA 1991).

b.   Officers were chasing the defendant when he threw away a shotgun which he had concealed. The defense argued that the officers did not have sufficient grounds for detaining the defendant and therefore the property was not voluntarily abandoned. On appeal the court relied on California v. Hodari, 499 U.S. 621 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). "[N]o seizure of the person occurs for fourth amendment purposes where the subject flees, and ... abandonment of contraband in flight is therefore not a fruit of an unlawful seizure of the person." State v. Green, 601 So. 2d 617 (Fla. 3d DCA 1992).

c.   Officers approached a group of people in a parking lot. The officers were wearing black masks and SWAT team-type regalia. One officer noticed the defendant put his hand behind his back and drop a tissue. The officer retrieved the tissue which contained drugs. The trial court granted a motion to suppress. The district court reversed based on the decision on California v. Hodari, 499 U.S. 621 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). There the court held that a seizure does not occur until the person is actually subdued or submits to an officer's show of authority. Thus, if a suspect runs and drops contraband it is admissible even though the stop is illegal. "Since factually there has been no detention, the evidence could not be the product of an illegal detention.... Hodari draws a clear distinction between those who yield to the authority of the police and those who flee. A person who flees from a show of authority has not been seized, while a person who remains in place and submissive to the show of authority has been seized. Therefore, if a person submits to an officer's show of authority and does not attempt to escape, then a seizure has occurred and dropped contraband must be suppressed if the seizure was illegal." Thus, in cases where an officer who lacked legal grounds for a detention has ordered a defendant to stop, pulled the defendant's car over, or asked the defendant what he had in his hand, resulting in the abandonment of contraband, the Court has found that the evidence was seized as a result of an unlawful detention. "Because the initial detention was illegal and the defendant was in fact seized, the court in each case suppressed the fruit of the illegal detention, as the contraband was not voluntarily abandoned. There is no requirement that a person must be ordered to drop an object before the abandonment can be considered involuntary." In this case it was a close question, but the Court upheld the trial judge's finding that "'a reasonable person under [these] circumstances would feel that he was not to move' - in other words that [the defendant] did submit to a show of authority." Hollinger v. State, 620 So. 2d 1242 (Fla. 1993).

d.   Where an officer, who had insufficient grounds to detain the defendant, attempted to do so by yelling "police" at him and the defendant threw down a paper bag containing cocaine and fled, the cocaine in the bag was secured by police as a result of voluntary abandonment and was therefore admissible. A.G. v. State, 562 So. 2d 400 (Fla. 3d DCA 1990).

e.   An officer starting chasing the defendant without legal grounds for detention. During the chase the defendant dropped a bag containing a gun. On appeal the court held that the gun was lawfully seized because it was abandoned before the officer caught the defendant. State v. Wilson, 595 So. 2d 1106 (Fla. 1st DCA 1992).

f.   An officer had no probable cause or reasonable suspicion to detain the defendant when he started chasing him. During that chase the defendant dropped some cocaine. The court held that the cocaine was not the fruit of an unlawful stop because it was abandoned before the officer caught the defendant. D.E. v. State, 605 So. 2d 574 (Fla. 3d DCA 1992).

g.   While officers were chasing the defendant who fled after being observed in a high drug activity area, he threw an object away. The officers properly secured the item, which proved to be a gun. State v. Jackson, 609 So. 2d 181 (Fla. 2d DCA 1992).

h.   The defendant ran from an officer. The officer chased the defendant and yelled stop. The defendant continued to run. When the officer was about 20 yards away the defendant reached into his pocket. The officer yelled, "Let me see your hands." The defendant dropped a pill bottle as he continued to run. "Under the rationale in Hodari D., the chase and call for [the defendant] to stop did not constitute a seizure. Therefore the abandonment of the cocaine was not the fruit of the poisonous tree and the evidence should not have been suppressed." State v. Bartee, 623 So. 2d 458 (Fla. 1993). See also Perez v. State, 620 So. 2d 1256 (Fla. 1993) [Defendant dropped a gun while being chased by an officer who had no legal basis for detention].

i.   An officer was chasing the defendant. When the officer was about three or four feet behind him, the defendant turned and dropped contraband. Immediately after dropping the items, the defendant said something to the officer to the effect of "what's going on." The trial judge granted a motion to suppress. On appeal the court reversed. "[A]n unlawful seizure takes place only if the person either willingly obeys or is physically forced to obey the police request. As such, there is no unlawful seizure when the person 'drops then stops,' even where the drop occurs after an order to stop." In this case the sole testimony was that the defendant did not yield to the officer's request to stop nor in any way submit to the officer's authority before dropping the terms. State v. Woods, 680 So. 2d 630 (Fla. 4th DCA 1996).

j.   The officer ordered the defendant to stop . The defendant refused and before the officer was able to grab him he threw a baggie of marijuana away. The defendant moved to suppress that evidence because the abandonment was the product of an illegal stop. The trial judge found that the stop was illegal and that was not an issue on appeal. On appeal, the court reversed. "To constitute ‘seizure of the person’ under the Fourth Amendment, there must be either an application of physical force by the officer against the individual or a showing that the individual submitted to the officer's show of authority. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Perez v. State, 620 So.2d 1256 (Fla.1993). There is ‘no unlawful seizure if the individual ‘drops then stops,’ even where the drop occurs after an order to stop.’ State v. Woods, 680 So.2d 630, 631 (Fla. 4th DCA 1996). Here, the respondent discarded the drugs without having acquiesced to the officer's request to stop and before the officer ever touched him. Accordingly, the drugs could not have been the fruit of an unlawful seizure and the motion to suppress should have been denied." State v. A.M., 788 So. 2d 398 (Fla. 3d DCA 2001).

3.  Dropping item after unlawful stop or order.  [Back]

a.   The Florida Supreme Court has ruled that abandonment of property after an illegal police stop but not pursuant to a search can be considered involuntary. Where an illegal detention results in abandonment, the abandonment is involuntary even in the absence of a search. State v. Anderson, 591 So. 2d 611 (Fla. 1992). See also State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991); Curry v. State, 576 So. 2d 890 (Fla. 2d DCA 1991).

b.   Where a defendant dropped a baggie of marijuana upon exiting the vehicle which had been unlawfully stopped the court held that the drugs had been either abandoned or accidently dropped as a result of an illegal stop and was inadmissible. Cox v. State, 586 So. 2d 1321 (Fla. 2d DCA 1991).

c.   Where the defendant was walking away from an officer, but when the officer yelled for him to stop he turned and responded and dropped contraband the property was involuntarily abandoned as a result of an unlawful seizure. In the Interest of: J.K., 581 So. 2d 940 (Fla. 4th DCA 1991).

d.  If an officer illegally seizes a defendant or illegally searches him before property is abandoned, the abandonment may be involuntary. "The test is whether there is a causal connection between the illegal conduct and the abandonment." State v. Daniels, 576 So. 2d 819 (Fla. 4th DCA 1991).

e.   As an officer approached a group in a known drug area they dispersed. The defendant, who was among the group, was known to the officer from a prior arrest. The officer ordered the defendant to come and talk with him. There were insufficient grounds for any kind of stop. As the defendant was walking back to the officer, he dropped a white object behind a hydrant. Another officer retrieved it and determined that it was a bottle containing cocaine. On appeal the Court applied the test established in California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) and concluded that the defendant discarded the item as a result of an illegal detention. "A person is seized when he comes under the officer's control either by physical force or by submission to the assertion of authority." Grant v. State, 596 So. 2d 98 (Fla. 2d DCA 1992).

f.   An officer saw the defendant in the seat of his pickup truck. He pulled up near an intersection which was apparently in a high crime area. The officer saw a man approach the defendant's vehicle and he appeared to pass something to the occupants. The officer only saw arm movement and could not identify any objects. He assumed that a drug deal had taken place and radioed another officer with instructions that the car be stopped. After that officer stopped the vehicle and was walking up to it he saw the defendant drop a piece of rock cocaine out of the window. The defendant was arrested and a motion to suppress was denied. On appeal the court reversed. "In those instances where no contraband was observed, the officer was deemed to have only a 'bare' rather than a 'reasonable' suspicion that the defendant was engaged in criminal activity. Accordingly, the subsequent stop would be illegal." The court also found that the property had been abandoned as a result of the illegal stop and thus, the abandonment was involuntary. Messer v. State, 609 So. 2d 164 (Fla. 2d DCA 1992).

g.   As an officer approached the defendant, the officer identified himself and told him to take his hand out of his pocket. The defendant complied. As he did so, cocaine fell from his person. The trial judge denied a motion to suppress. On appeal the court reversed. The court found that there was a seizure when the officer ordered the defendant to remove his hand from his pocket and he complied. This was a submission to authority. There was no legal basis for the detention. The abandonment of the drugs was involuntary because it resulted from an illegal stop. Harrison v. State, 627 So. 2d 583 (Fla. 5th DCA 1993).

h.   An officer wanted to stop the defendant. He opened his cruiser door so that the defendant, who was on a bicycle, would hit and fall. When this happened the defendant threw the bag containing cocaine to the side. The trial judge denied a motion to suppress. The state argued that the bag had been abandoned. On appeal the court reversed. "A seizure involves either the application of physical force or the submission to an officer's show of authority.... The officer applied a show of force by opening his door so that the appellant would hit and fall off his bicycle. The officer admitted that this was intentional." It was not necessary for the officer to touch the defendant with his hands. Clark v. State, 648 So. 2d 848 (Fla. 4th DCA 1995).

i.   A deputy saw the defendant walking in a high crime area at 10:00 p.m., carrying a flashlight. The deputy pulled his car behind the defendant and began getting out of the car. The defendant turned around and put his hand in his pocket. The deputy told the defendant to "step back into my patrol vehicle." The officer also told the defendant to take his hands out of his pocket. The defendant was willing to follow the officers orders and apparently started to do so. In the process he dropped a pill bottle containing contraband. The officer had no basis to detain the defendant. The trial judge denied a motion to suppress. On appeal the court reversed. The defendant "had submitted to the deputy's authority by beginning to comply with the deputy's instruction to get into the patrol car." Thus, the abandonment of the property resulted from submission to authority without any legal basis for the detention. "Had the deputy here merely asked [the defendant] to approach his car in order to speak with him, and [the defendant] had thrown down the contraband, or had [the defendant] refused to comply with the deputy's directive, [the defendant] would have voluntarily abandoned the contraband and it could have been used as evidence against him." Lang. v. State, 671 So. 2d 292 (Fla. 5th DCA 1996).

j.   The defendant was a passenger who was ordered to exit a lawfully stopped vehicle without reasonable suspicion or any other basis. The sole reason for requiring that he exit was that he was being verbally abusive of the officer, not for officer's safety. When he exited he dropped a bag containing contraband. The seizure of this bag was unconstitutional because it was abandoned as a result of an unlawful order. R.H. v. State, 671 So. 2d 871 (Fla. 3d DCA 1996).

k.   In the late afternoon the defendant was in a high crime area sitting on a bicycle with a very small plastic baggie in his hand. When two officers approached him from behind, the defendant shoved the baggie down the front of his pants. Based on that the officers grabbed the defendant. As that happened the defendant dropped two baggies on the ground. The officers picked them up and determined that they contained rock cocaine. The officer knew nothing about the defendant and had never seen him before. He saw the baggie for only two or three seconds before the defendant stuffed it into his pants. The defendant was arrested. The defendant's motion to suppress was denied. On appeal the court reversed. The officers did not have reasonable suspicion justifying a detention. Furthermore, the search could not be justified on an abandonment theory because "the Florida Supreme Court ... has held that for a criminal defendant's abandonment of evidence to remove the taint of an illegal stop or arrest, 'the abandonment must be truly voluntary and not merely the product of police misconduct.' State v. Anderson, 591 So.2d 611 (Fla. 1992)." In this case that standard was not met. Welch v. State, 689 So. 2d 1240 (Fla. 2d DCA 1997).

l.   Where officers unlawfully entered a hotel room and arrested the defendant, the fact that the defendant threw drugs off the balcony after the arrest did not constitute abandonment. The drugs were the fruit of the poisonous tree and should have been suppressed. Dempsey v. State, 717 So. 2d 1071 (Fla. 1st DCA 1998).

m.   Deputies stopped a vehicle for a a faulty tail light. The defendant was a passenger. The deputies told the defendant to exit and locked him in the patrol car while the search the stopped vehicle. There was no basis for detaining the defendant. Deputies finished the search and found nothing One deputy released the defendant from the patrol car. About fifteen minutes had passed since the vehicle was initially stopped. After the defendant exited the vehicle, a deputy checked the rear seat of the patrol car and discovered crack cocaine pushed down into it. The deputy arrested the defendant on these charges. The defendant moved to suppress on the grounds that police officers unlawfully detained him for an unreasonably long period of time, which was more than necessary to investigate the traffic stop and that he was detained with probable cause. On appeal, the court agreed. "Where abandonment of evidence is the product of an illegal stop, the abandonment is involuntary and the abandoned property must be suppressed. State v. Anderson 591 So.2d 611, 613 (Fla.1992). Evidence abandoned in a patrol vehicle, where the suspect has been detained without probable cause or other justification, requires suppression of the evidence seized. (citations omitted).... Although a suspect's voluntary abandonment of evidence can remove the taint of illegal conduct, the abandonment must be truly voluntary and not merely the product of police conduct. (citation omitted) Assuming [the defendant] left the contraband in the seat of the patrol vehicle, several factors are relevant in considering whether this act was the product of the illegal police conduct, thereby requiring it to be suppressed. (citations omitted) Courts consider the temporal proximity of the arrest or detention, to the defendant's act. (citation omitted) Specifically, if there are any intervening events or circumstances that negate the primary illegal police conduct, the government may defeat a claim that illegal police conduct produced the evidence, through the demonstration of a break in the causal chain. (citation omitted) In this case, the drugs were abandoned during the course of the illegal seizure and there were no intervening events to isolate the abandonment of the drugs from the illegal seizure." Clinton v. State, 780 So. 2d 960 (Fla. 5th DCA 2001).

4.  Dropping item after lawful stop or order.  [Back]

a.   Where a vehicle was lawfully stopped and a passenger dropped evidence as he ran from the scene, that evidence could be seized as abandoned property. Moore v. State, 561 So. 2d 625 (Fla. 1st DCA 1990).

b.   Officers made a lawful traffic stop. The driver consented to a search of the vehicle. The defendant was in the backseat. After he exited, officers discovered cocaine. He sought suppression of the evidence on the grounds that the officers had no right to continue the detention once traffic citations were issued. "[W]e conclude that the officer conducting a traffic stop could request permission to search the car and detain all occupants of the car until he completed the search." "When the driver's consent leads, as it does in the case before us ... to discovery of a passenger's abandoned contraband, such abandonment cannot be deemed involuntary since the initial stop was lawful as were all circumstances stemming from the stop." State v. Cromatie, 668 So. 2d 1075 (Fla. 2d DCA 1996).